FCC Expands Role of Telecommunications Certification Bodies in Equipment Authorization Regime
Just before the New Year, the Commission released revised equipment authorization rules providing that Telecommunications Certifications Bodies (“TCBs”) will soon process and grant all applications for certification. As set forth in the Report and Order released December 30, 2014, although the Office of Engineering and Technology (“OET”) of the Federal Communications Commission (“FCC”) will cease accepting and granting applications for Certification upon the rules’ effective date, OET will still administer pre-approval guidance pursuant to codification of its “permit but ask” procedures. Those procedures will be extended to all RF devices currently on OET’s exclusion list which has reserved a changing list of device types for Commission-only certification. Under the pre-approval guidance process, OET will continue to exercise oversight by identifying the types of devices for which a TCB will be required to consult with OET before the TCB can issue a grant of certification. Future changes to the list of devices subject to the pre-approval guidance will be made via Commission/OET decision documents and OET’s Knowledge Database, in much the same way as the periodically changing exclusion list has been maintained to date. In this way, the FCC intends to preserve its control over the authorization of devices with a greater potential for causing harmful interference while facilitating a greater responsibility for TCBs.
The modified equipment authorization rules will take effect 30 days after publication in the Federal Register, which has yet to occur. The FCC will stop accepting equipment certification applications as of the effective date.
The Report and Order adopts a number of other changes, many of which impact TCBs directly:
- TCBs will be required to submit all information related to certification applications and grants to the FCC’s Equipment Authorization System (“EAS”), including pre-approval guidance inquiries made to OET.
- TCBs will be free to establish their own procedures with clients regarding the use of electronic filing and issues of documentation authenticity. The Commission declined to codify any requirements regarding the cost of applications made to TCBs, including charges for expediting applications preferring to let the market decide among TCBs.
- The guidance OET has provided TCBs regarding post-market surveillance has been codified and clarified, including the amount of surveillance (a sample rate of at least 5% of all of a TCB’s certified devices, including permissive changes), the responsibilities related to testing in connection with surveillance, and the timing and content of periodic reports to the FCC. TCBs are required to conduct post-market surveillance only related to those devices for which they have issued grants of certification. Under the rule changes, OET may select the devices for a TCB to test, and the Commission will be the final arbiter in any disputes between TCBs and grantees about whether certain devices comply with the rules.
- Where post-market surveillance testing of a device finds it to be non-compliant, OET will work with the grantee to resolve the matter and ensure compliance going forward, and will refer items to enforcement where non-compliance is the result of willful action as opposed to, for example, changes to the manufacturing process leading to inadvertent non-compliance.
- TCBs may initiate requests for devices for post-market testing from grantees through the EAS system, improving the Commission’s ability to monitor and intervene if necessary.
- Grantees will be responsible, upon request, to issue vouchers to the TCBs and the Commission to allow them to select samples for testing from the marketplace free of charge, or, as an alternative, grantees may allow the TCB or FCC to select a product randomly from the manufacturing or warehousing location. Furthermore, if special software or specialized mechanisms, methods, or modifications are required to test such unmodified production devices, the manufacturer must make these available (at no cost) along with any necessary instructions to the Commission or TCB upon request.
- The National Institute of Standards and Technology's ("NIST’s") role as the Designating Authority for TCBs located in the United States was confirmed.
- Organizations outside the U.S. acting under a Mutual Recognition Agreement may accredit and designate TCBs, but the Commission reserved the ultimate determination of whether to recognize a designated TCB before permitting that TCB to operate. The FCC codified criteria to guide OET’s acceptance of new laboratory accreditation bodies.
- Rules related to TCB performance and withdrawal of TCB recognition were modified. Specifically, the Commission maintained the 60-day notice period prior to withdrawal but noted that circumstances may warrant a shorter notice period, for example if there is an immediate concern regarding a TCB’s capability or its intention to comply with requirements to ensure appropriate certification of devices. The sanctions that FCC can impose vary and may include requiring the TCB to follow the pre-approval guidance procedure for all applications for certification before they can be granted or immediately suspending recognition at the other extreme.
The Report and Order also updates references to industry measurement procedures in the Commission’s rules for Part 15 unintentional and intentional radiators, specifically ANSI C63.4-2014 and ANSI C63.10-2013; provides that revisions to these cross-referenced standards will not take effect until the Commission or OET on delegated authority completes a rulemaking adopting any such change; and establishes specific site validation criteria for test facilities used for making radiated emissions at frequencies above 1 GHz. The Report and Order reflects the FCC’s decision to give the Chief of OET delegated authority to engage in limited rulemaking action, following notice in the Federal Register and an opportunity for comment, in order to modify Parts 2, 5, 15, and 18 of rules to reference updated versions of standards where such standards are already referenced in the rules and to adopt any appropriate transition periods. This process should permit the FCC to better and more rapidly keep pace with changing industry standards than if the Commission were required to complete a full rulemaking proceeding for every widely-accepted and expertly-considered update to references in its rules regarding equipment measurement practices. The Report and Order acknowledges that it is possible that incorporation of some standards updates will be matters more appropriately considered by the full Commission, and OET will be directed to refer matters for review and decision by the Commission if use of an updated standard may raise major compliance issues.
The Commission’s Report and Order is a further step in the evolution of the equipment authorization procedures. By relying more heavily on TCBs, the Commission no doubt hopes that, on average, radiofrequency devices subject to certification can be authorized and, thus, marketed sooner. But the rule changes also make clear the FCC simultaneously intends to keep its hands on the reins to ensure the potential for interference is minimized as ever increasingly advanced products are brought to market and the testing requirements for those products become correspondingly more complex.