CommLaw Monitor News and analysis from Kelley Drye’s communications practice group Wed, 03 Jul 2024 03:43:42 -0400 60 hourly 1 FCC’s January Meeting Agenda Includes Proposed Disclosures for All Broadband Providers Tue, 25 Jan 2022 17:21:59 -0500 The FCC released its agenda for the next Commission Open Meeting, scheduled for January 27, 2022. The agency will consider a Notice of Proposed Rulemaking (“NPRM”) that would require all broadband Internet access service providers (“ISPs”) to disclose information about various aspects of their service to consumers at the point of sale (“ISP NPRM”). The FCC will address a Report and Order that would amend the E-Rate program rules to clarify that Tribal libraries are eligible for E-Rate support (“E-Rate Tribal Order”). The commissioners also will consider a Second Order on Reconsideration and Order that would revise rules governing white space spectrum to ensure that wireless microphones are protected from harmful interference (“White Space Order”). In addition, the FCC will focus on an NPRM that would propose to amend the equipment authorization rules to incorporate updated technical standards (“Equipment NPRM”).

You will find more information about the items on the January meeting agenda after the break:

Empowering Broadband Consumers Through Transparency – The ISP NPRM would propose rules to implement certain provisions in the Infrastructure Investment and Jobs Act (“Infrastructure Act”). Specifically, Section 60504 of the Infrastructure Act directs the Commission to “promulgate regulations to require the display of broadband consumer labels” to “disclose to consumers information regarding broadband Internet access service plans.” In accordance with that statutory mandate, the ISP NPRM would propose consumer labels consistent with a 2016 Public Notice (DA 16-357). In the 2016 Public Notice, the Commission set forth various required consumer disclosures related to fixed and mobile broadband services, including information about pricing, data allowances, broadband speeds, network management practices and fees. The Commission would also seek comment on the following issues: whether any changes should be made to the content of the consumer labels contained in the 2016 Public Notice; where the consumer labels should be displayed; how to ensure the accuracy of the content of the labels; and the effective date of the label requirements.

Connecting Tribal Libraries – The E-Rate Tribal Order would amend Sections 54.500 and 54.501(b)(1) of the FCC’s rules to clarify that Tribal libraries are eligible for E-rate support. Pursuant to Section 254(h)(4) of the Communications Act of 1934, as amended, a library may not receive preferential treatment or rates (such as under the E-rate program) unless it is eligible for assistance from a State library administrative agency under the Library Services and Technology Act (“LSTA”). The amended FCC rule would be consistent with a 2018 amendment to the LSTA which provided that Tribal libraries are eligible for assistance from a State library administrative agency. The Commission’s planned clarification about Tribal libraries’ eligibility for E-Rate support is intended to increase Tribal libraries’ participation in the E-Rate program and lead to more affordable access to high-speed broadband and a narrowing of the digital divide in Tribal regions. The E-Rate Tribal Order would also direct the Office of Native Affairs and Policy and the Wireline Competition Bureau, together with the Tribal Liaison at the Universal Service Administrative Company, to focus on outreach efforts and training for Tribal libraries. Finally, the Commission would implement measures to track Tribal libraries’ participation in the E-rate program.

Facilitating Better Use of ‘White Space’ Spectrum – The White Space Order would revise technical requirements governing how white space devices and white space databases work together to ensure that the licensed operation of wireless microphones is not subject to harmful interference. Under Part 15 of the FCC’s rules, unlicensed devices can operate on unused channels within the broadcast television spectrum and certain other areas of the spectrum where licensed wireless operations have not commenced (commonly known as white spaces), so long as they do not cause harmful interference. As a means to prevent harmful interference, white space devices must contact a white space database (administered by Commission-designated private entities) at least once per day to obtain a list of available channels and the associated maximum power level for those channels. In 2015, the FCC adopted rules to further protect the operation of licensed wireless microphones by requiring white space databases to push changes in channel availability to white space devices. In response to petitions asserting that the push notification is burdensome and technically infeasible, the FCC would replace that requirement with a requirement for white space devices to check the white space database once per hour to protect licensed wireless microphones. In addition, the White Space Order would deny a petition for reconsideration of the FCC’s Office of Engineering and Technology’s approval of Nominet UK (now RED Technologies) as a white space database administrator.

Updating Equipment Authorization Rules – The Equipment NPRM would propose to update equipment authorization rules to reference new technical standards. The Commission’s equipment authorization procedures ensure that radiofrequency devices operate without causing harmful interference. The FCC’s rules governing equipment authorization of radiofrequency devices incorporate several standards set by industry standard-setting bodies, such as the America National Standards Institute (“ANSI”) and the International Organization for Standardization (“ISO”). The Equipment NPRM would focus on standards that are referenced in the Commission’s equipment authorization rules that relate to the testing of equipment and accreditation of laboratories that test radiofrequency devices. In particular, the Equipment NPRM would seek comment on the following: (1) incorporating “American National Standard Validation Methods for Radiated Emission Test Sites; 1 GHz to 18 GHz” (ANSI C63.25.1:2018) as a new technical standard; (2) referencing a more current version of “American National Standards of Procedures for Compliance Testing of Unlicensed Wireless Devices” (ANSI C63.10:2020); and (3) transitioning to “Conformity assessment – Requirements for accreditation bodies accrediting conformity assessment bodies” (ISO/IEC 17011:2017) and “General requirements for the competence of testing and calibration laboratories” (ISO/IEC 17025:2017).

Please contact the authors or your Kelley Drye attorney for more information about these items or to participate in the proceedings.

FCC Begins Proceeding to Broaden its National Security Protections Beyond Universal Service Disbursements; IoT, Cybersecurity in its Sights Sun, 20 Jun 2021 22:36:29 -0400 Protecting the U.S. telecommunications networks from security threats has long been an area of strong agreement at the FCC. Following several actions by the Pai Commission to ban Huawei and ZTE equipment deemed to pose a national security threat, Acting Chairwoman Rosenworcel has continued the effort. Indeed, in February, at the first meeting she led as acting chair, Rosenworcel called on the FCC to “revitalize” its approach to network security “because it is an essential part of our national security, our economic recovery, and our leadership in a post-pandemic world.”

At the FCC Open Meeting on June 17, 2021, the FCC took its most visible step yet toward Acting Chairwoman Rosenworcel’s vision. The Commission adopted a Notice of Proposed Rulemaking (“NPRM”) and Notice of Inquiry (“NOI”) to further address national security threats to communications networks and the supply chain. The NPRM and NOI sets its sights on the Commission’s rules relating to equipment authorization and competitive bidding. The Commission’s proposals have seeds of a much broader focus on Internet of Things (“IoT”) devices, cybersecurity and RF fingerprinting, to name a few. All participants in the telecommunications ecosystem should take notice.

The NPRM and NOI initiates an inquiry into many proposals to tighten the focus on network security in FCC procedures. Most notably, the Commission opened inquiry into the following areas:

Equipment Authorization Rules and Procedures – The NPRM seeks comment on a proposal to prohibit all future authorizations of equipment on the Covered List under the Secure and Trusted Communications Networks Act of 2019, including equipment subject to the FCC’s certification and Supplier’s Declaration of Conformity processes associated with equipment authorization. This proposal goes beyond the current rules, which prohibit recipients of Universal Service Program funding to use that funding to purchase, lease or maintain equipment on the Covered List.

Under current rules, despite the USF program prohibition, equipment on the Covered List can still obtain equipment authorization (and has already obtained authorization). The NPRM considers whether to revise the rules to ensure that any “covered” equipment cannot qualify for authorization. It also seeks comment on whether to revoke authorizations that were previously granted for equipment on the Covered List. If approved, the FCC seeks to determine which authorizations should be revoked and through what procedures.

Competitive Bidding Certification – The NPRM also seeks comment on a proposal to require applicants who wish to participate in FCC auctions to certify that their bids do not and will not rely on financial support from any entity that the FCC has designated under Section 54.9 of the FCC’s rules as a national security threat to the integrity of communications networks or the communications supply chain. The certification would require applicants to attest that no equipment (including component part) is comprised of any “covered” equipment, as identified on the current published list of “covered” equipment and would cross-reference section 1.50002 of the FCC’s rules that include the Covered List.

Manufacturing Encouragement Efforts – The NOI portion of the FCC document seeks comment on how the FCC can leverage its equipment authorization program to encourage manufacturers who are building devices that will connect to U.S. networks to consider cybersecurity standards and guidelines. The FCC inquires further about how to address security risks associated with IoT devices. Importantly, as we theorized a while back, the FCC notes the work that the National Institute of Standards and Technology (“NIST”) has done on cybersecurity and, in particular, cybersecurity for IoT devices, and asks whether the FCC’s equipment authorization rules should require manufacturers to certify in equipment authorization applications that they have considered this guidance in the design and manufacturing of their devices. The NOI also includes questions regarding the use of “RF fingerprinting” to help identify and isolate insecure devices.

Commissioner Statements

As expected, the NPRM and NOI received unanimous support from the Commissioners. Acting Chairwoman Rosenworcel cited to the rash of ransomware attacks and emphasized the need for broader cybersecurity considerations of IoT. “We need to acknowledge that the equipment that connects to our networks is just as consequential for our national security as the equipment that goes into our networks,” she said. Commissioner Carr discussed the possibility of Chinese interference with missile defense systems in North Dakota and referred to this proceeding as “closing a loophole” in FCC rules. Commissioner Starks, a former staff member in the Enforcement Bureau, emphasized changes intended to make enforcement against foreign actors easier to implement, citing examples from the past decade involving illegal jamming equipment manufactured overseas. Commissioner Simington took credit for adding “RF fingerprinting” to the NOI, stating that the technology “can play a central role in interdiction and enforcement of hacking and cyber-crime.”

With this proposal’s broad support at the Commission, equipment manufacturers (including IoT device manufacturers should pay close attention to the FCC’s actions. Comments will be received over the summer and the Commission could address its rules by year-end. Affected manufacturers may wish to comment in the proceeding.

FCC June Meeting Agenda Includes Broadened Supply Chain Measures, Improved Emergency Alerts and Robocall Reporting, and Expanded Telehealth Guidance Wed, 09 Jun 2021 11:14:41 -0400 The FCC released the agenda for its next Commission Open Meeting, scheduled for June 17, 2021. The meeting will first consider a Notice of Proposed Rulemaking (“NPRM”) and Notice of Inquiry (“NOI”) to broaden the secured communications supply chain beyond the FCC’s universal service programs. Specifically, the NPRM would propose to prohibit all future authorizations for equipment on the FCC’s Covered List, revoke current equipment authorizations for equipment on the Covered List, and require certifications from future FCC auction participants that they will not rely on financial support from any entities designated as a national security threat. The FCC also tees up a Report and Order that would allow for expanded marketing and importation of radiofrequency devices prior to certification, with certain conditions to prohibit sale or operation of those devices prior to authorization. The agency will next consider a Report and Order and FNPRM that would improve and streamline the agency’s Emergency Alert System (“EAS”) and Wireless Emergency Alerts (“WEA”) Systems, as initially proposed in a March 2021 NPRM. The FCC will also consider a Report and Order that would streamline private entity reporting of robocalls and spoofed caller ID by creating a direct reporting portal to the Enforcement Bureau, along with a Report and Order providing additional guidance and clarity on the agency’s telehealth-driven Connected Care Pilot Program. Lastly, the meeting agenda includes items that would explore spectrum options for maritime navigations systems and modify existing low power FM rules.

You will find more information about the most significant items on the June meeting agenda after the break:

Securing the Communications Supply Chain – The NPRM and NOI would seek comment on a proposal to prohibit all future authorizations for equipment on the FCC’s Covered List under the Secure and Trusted Communications Act. The NPRM would seek comment on whether, and how, the FCC should revoke any current authorizations for equipment included on the Covered List, and if it should revise the rules to no longer permit exceptions for equipment authorizations on the Covered List. It would also propose to require participants in any upcoming FCC auctions to certify that their auction bids do not and will not rely on financial support from any entity that the agency has designated as a national security threat to the communications supply chain. The NOI would seek comment on how the FCC can leverage its equipment authorization program to encourage manufacturers to consider cybersecurity standards and guidelines when building devices that will connect to U.S. networks.

Modernizing Equipment Marketing and Importation – The Report and Order would adopt changes to the equipment authorization rules to allow expanded marketing and importation of radiofrequency (“RF”) devices prior to certification, with conditions. The Order would add a new condition to allow importation of up to 12,000 RF devices for certain pre-sale activities prior to authorization. It would additionally amend the FCC’s rules to allow conditional sales of RF devices prior to authorization, so long as those devices will not be delivered to consumers until they are authorized. The Order includes labeling, recordkeeping, and other conditions to ensure that RF devices are not sold or operated prior to equipment authorization.

Improving Emergency Alert Systems – The Report and Order and FNPRM would adopt the rule changes proposed in the FCC’s March 2021 NPRM to update the EAS and WEA systems rules, pursuant with the 2021 National Defense Authorization Act (“NDAA”) requirements. The Order would create a new category of non-optional “National Alerts,” combining WEA Presidential Alerts with FEMA Administrator Alerts, which may be nationally or regionally distributed. States would be encouraged to establish a state EAS plan checklist for State Emergency Communications Committees (“SECCs”), or otherwise establish an SECC if not already formed. This Report and Order would also enable FEMA to report false EAS and WEA alerts and to repeat certain EAS messages if necessary. The FNPRM would seek comment on whether to remove or refine certain EAS emergency event codes that are irrelevant or confusing, and on whether to update the EAS to include a more persistent display and notification of emergency messages for more severe events.

Implementing the TRACED Act – The Report and Order would establish rules pursuant to the TRACED Act to create a process that streamlines the ways in which a private entity may report robocalls or spoofed caller ID to the FCC. The Commission would create on online portal where private entities, meaning any entity other than an individual person or public entity, could submit suspected violations directly to the Enforcement Bureau. The Order clarifies that the new portal would not affect the existing consumer complaint process, and the agency will still use the consumer complaint portal for individual consumer complaints.

Connected Care Pilot Program – The Second Report and Order offers further guidance on the Commission’s Connected Care Pilot Program, including on the Pilot Program budget and administration, eligible services, competitive bidding instructions, invoicing, and data reporting for selected participants. Notably, the Order clarifies that the Pilot Program will reimburse network equipment purchases necessary to make both broadband and connected care information services functional, even if the Pilot Program is not directly supporting the costs of those services. The FCC announced earlier this year that an initial 23 applicants had been selected, with more selected applications to be announced at a later date, and selected applicants could begin the funding request process once this Report and Order becomes effective.

FCC Wraps Up 2020 with December Meeting Focusing on Supply Chain Security and Equipment Marketing Tue, 08 Dec 2020 19:31:15 -0500 The FCC released the agenda for its December Open Meeting, scheduled for December 10, 2020 on November 19, 2020, but the agency has made several changes since. The last meeting of the year will lead with a Report and Order on securing the communications supply chain that would require Eligible Telecommunications Carriers ("ETCs") receiving federal universal service funding to remove and replace equipment and services identified as a risk to national security from their networks. The supply chain rulemaking would establish procedures and requirements for affected providers to seek reimbursement of their removal and replacement costs. The Commission will also consider a Notice of Proposed Rulemaking ("NPRM") that would propose to modernize the marketing and importation rules for regulated equipment. Additionally, the December meeting will include an Order that would amend the invoice filing deadline rule for the E-Rate Program, which supports communications services for schools and libraries, and an Order on Reconsideration clarifying the agency’s interpretation of the Telephone Consumer Protection Act ("TCPA"), although the draft texts of these two items have not been released.

The December meeting may be the first attended by recently-confirmed Republican FCC Commissioner Nathan Simington, who will replace outgoing Commissioner Michael O’Rielly after today’s confirmation vote in the U.S. Senate. In addition, Chairman Pai recently announced that he intends to leave the FCC on Inauguration Day, January 20, 2021. As a result, the January 2021 FCC open meeting will be his last meeting before the change in administration.

You will find more details about the most significant items on the December meeting agenda after the break.

Securing the Communications Supply Chain – The draft Report and Order would require ETCs receiving Universal Service Fund support to remove and replace covered equipment and services posing a national security risk from their networks. It would also establish a reimbursement program to subsidize smaller carriers to remove and replace covered equipment, specifically those providers with two million or fewer customers, once Congress appropriates the estimated $1.6 billion needed to reimburse eligible providers for such costs. The draft Order would establish the procedures and criteria for publishing a list of covered communications equipment or services, and would adopt a reporting requirement for all providers of advanced communications services to annually report on covered equipment and services in their networks.

Modernizing Equipment Marketing and Importation Rules – The draft NPRM would propose updates to the Commission’s marketing and importation rules under its equipment authorization program. The proposed rules would permit, prior to equipment authorization, conditional sales of radiofrequency devices to consumers under certain circumstances. The NPRM also would propose to allow a limited number of radiofrequency devices subject to Certification to be imported into the U.S. prior to equipment authorization for certain pre-sale activities, including packaging and shipping devices, and loading devices with specific software.

TCPA Order on Reconsideration – The draft Order on Reconsideration would clarify the Commission’s previous interpretation of the TCPA that permitted government and government contractor calls without consumers’ prior express consent. The draft item would address long-standing questions regarding a 2016 Declaratory Ruling that first set guardrails on the government and government contractor exemption. The draft text of this item has not been publicly released.

Modernizing the E-Rate Program – The draft Order would amend the E-Rate invoice filing deadline rule to ensure program participants have sufficient time to complete the invoice payment process. Specifically, the Order would address situations where USAC issues a revised E-Rate funding commitment letter, in which case the FCC will allow recipients additional time to complete the work identified in the revised funding commitment. The draft text of this item has not been publicly released.

FCC Opens Proceeding to Reinvigorate Opportunities for TV White Space Devices Fri, 06 Mar 2020 10:29:40 -0500 On February 28, 2020, at its Open Meeting, the FCC voted to commence a rulemaking to examine the rebalancing of many technical rules governing the deployment of fixed and certain mobile, unlicensed white space devices in the television bands (in and around the 600 MHz range) to increase opportunities for relatively long-distance connectivity in rural and underserved areas, such as for wireless broadband solutions or applications associated with the Internet of Things (“IoT”), although there are no application restrictions on white space devices per se. The rule changes are proposed only in those frequencies below TV channel 35, and so exclude the 600 MHz duplex gap and the 600 MHz service band. The text of the Notice of Proposed Rulemaking (“NPRM”) was promptly released on March 2. Comments are due 30 days after Federal Register publication with replies due sixty days after publication, which has not yet occurred.

Part 15 of the FCC’s rules allow unlicensed white space devices to operate at locations on frequencies not in use by licensed services. Twelve years ago, the FCC authorized unlicensed white space device operations for the first time on television channels not being used locally by broadcasters and associated service licensees. The devices are required to obtain a list of available channels and power levels for use at their particular location from FCC-approved entities that maintain accessible databases. Fixed devices must also incorporate geo-location capability. Portable devices must include geo-location and database access capabilities or, alternatively, acquire a list of available channels via another device with geo-location ability and access to a database. While several orders in the intervening years have been designed to increase flexibility and promote additional opportunities for deployment of such devices, such as relaxed technical accommodations for devices in rural and underserved areas, their use has fallen somewhat below initial aspirations.

Last May, Microsoft Corporation filed a petition for rulemaking requesting that the FCC provide yet additional flexibility for white space device operations. Many commenters filed in support, but the National Association of Broadcasters (“NAB”) raised concerns, as did stakeholders with interests in Wireless Medical Telemetry Service (“WMTS”) operations on Channel 37 and proponents of wireless microphones using spectrum not being used by other licensed services.

Proposed New Power and Height Limits for White Space Devices in “Less Congested” Areas

Now, after the NAB and Microsoft have worked together to resolve most of their differences, the FCC proposes to permit fixed white space devices in spectrally “less congested” areas over larger distances through using higher transmit powers (16 v. 10 W EIRP) and deploying antennas at greater heights above average terrain (up to 500 meters from a maximum of 250 meters) – while maintaining the existing one-watt transmitter conducted power limit for fixed devices and proposing certain adjustments when higher gain antennas are used. This flexibility would come with the need to maintain greater separation distances from authorized services, although the FCC also invites comment about even greater flexibility in powers used and antenna heights and whether coordination or notification procedures should be adopted in combination with the proposed relaxed requirements.

Given the foregoing proposals, the FCC, in the NPRM, additionally inquires whether it should relax the limit on antenna height above ground level, including potentially in all areas within the United States. But current power and height limits would remain in Channel 36, which the FCC believes would be adequate to protect WMTS and Radio Astronomy operations in Channel 37.

As an overarching matter, the FCC also inquires whether it should change the definition of “less congested” areas which now are those areas where, within the band of intended operation, at least half of the TV channels that will continue to be allocated and assigned only for broadcast service are unused for broadcast and other protected services, and are thus available for white space device use. For example, the FCC asks whether “less congested” areas should be defined, in part, based on population density.

In conjunction with these proposals, the FCC will consider making additional changes to the protection criteria for operations in the TV bands other than broadcasting, such as TV translator receive sites, Low Power TV (including Class A) receive sites, Multichannel Video Programming Distributor (“MVPD”) receive sites, fixed Broadcast Auxiliary Service (“BAS”) links, the private land mobile radio and commercial mobile radio services (“PLMRS” and “CMRS”), and licensed wireless microphones.

Potential Operation of White Space Devices on Mobile Platforms in Geo-Fenced Locations

Additionally, the NPRM proposes to permit higher-power operation of white space devices on TV Channels 2-35 on mobile platforms inside “geo-fenced” areas (within “less congested” areas) enforced by incorporated geo-location capabilities, e.g., GPS coupled with a database, and new operational requirements, such as prohibiting operation on board aircraft or satellites to limit the potential for interference. The FCC seeks comment on a wide variety of other questions related to permitting wider deployment of white space devices on mobile platforms, including limitations on the size of the area over which a higher-power mobile device could operate, changes to the databases used for white space devices, and other possible safeguards.

Prospective Changes That Might Propose Use of White Space Devices for IoT

The FCC also hopes to facilitate innovative narrowband IoT services by considering certain changes to the power spectral density (“PSD”) limits applicable to white space devices in the TV bands. Matters raised by the NPRM include a revised definition of “narrowband” white space devices and spectrum utilization limits, while the FCC leans toward permitting manufacturers and standards groups to develop their own protocols to prevent multiple devices from transmitting simultaneously and interfering with each other without a regulatory mandate. As with all of the other areas under consideration in the proceeding, the FCC asks whether there are other rule modifications needed to promote narrowband operations while ensuring protection of authorized services that operate in the TV bands from harmful interference potentially caused by narrowband white space devices.

Possible Flexibility for White Space Devices to Operate Adjacent to Occupied TV Channels

Further, the FCC seeks comment about higher-power white space device operation within the service contour of an adjacent-channel TV station. Generally, white space device operations above 40 milliwatts EIRP must generally operate outside the protected contours of adjacent-channel TV stations, although fixed white space devices may operate within the protected contour of adjacent-channel TV stations with a power level of 100 milliwatts EIRP when the white space device operates in a six-megahertz band centered on the boundary of two contiguous vacant channels, which requires three contiguous vacant channels available for use. Microsoft noted that these conditions are not always present and the FCC should therefore consider other ways to permit higher-power operation of white space devices when adjacent TV channels are occupied, such as more sophisticated location-determining computer models (e.g., Longley-Rice) and consideration of improved selectivity in next-generation TV receivers. NAB opposes any consideration of this matter – the primary area where Microsoft and the broadcasters could not reconcile their differences over Microsoft’s proposals.

Interest in Microsoft’s proposals has already been considerable, with almost two dozen parties commenting. There is every reason to expect that a similar level of participation will emerge during the rulemaking. Manufacturers of white space devices, developers of agricultural, mining, construction, and other IoT applications, and potential users of these devices should be especially interested, as well as broadcasters and those operating in the authorized services in the TV bands.

New Podcast: Navigating the FCC’s LED Sign Initiative Thu, 04 Apr 2019 11:20:03 -0400 In February 2019, the FCC issued an Enforcement Advisory warning marketers of LED signs that their products must be authorized, properly labeled, and contain the required user disclosures before being marketed in the United States. The Enforcement Advisory followed a slew of enforcement actions in 2018 totaling hundreds of thousands of dollars in penalties against importers and retailers of LED signs for violations of the FCC’s equipment marketing rules. This special edition of Full Spectrum’s enforcement series does a deep dive on the FCC’s LED sign enforcement initiative, breaking down the FCC’s equipment authorization rules, how they apply to LED signs, and what importers, retailers, and others in the LED sign supply chain need to do now in order to avoid FCC enforcement action later.

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All Signs Point to Aggressive Enforcement of Equipment Marketing Rules after Another FCC Action Related to LED Displays Wed, 13 Mar 2019 11:45:38 -0400 After multiple enforcement actions totaling hundreds of thousands of dollars in penalties against importers and retailers of LED signs last year, it appears that the message has not been fully received. To the contrary, the FCC is back at it in enforcing its equipment marketing rules against importers and retailers of LED signs in 2019. In a recent Enforcement Advisory, the FCC again warned companies marketing noncompliant LED displays that they may be subject to costly investigations and significant monetary penalties. As we previously reported, these warnings should put all importers and retailers of LED signs – many of whom may not know FCC rules apply to them – on notice that their products should be authorized, properly labeled, and contain the required user disclosures before being marketed in the United States. The FCC often uses Enforcement Advisories to set the stage for future enforcement action and the agency appears poised to move forward with another wave of enforcement actions in the coming months. It is therefore critical that companies assess their equipment marketing compliance procedures now to avoid Commission enforcement later.

The Enforcement Advisory emphasizes the broad scope of the FCC marketing rules, which apply not only to equipment retailers but also any entity that imports, distributes, or advertises equipment for sale or lease. The Enforcement Advisory also highlights four key compliance requirements for marketers of LED signs:

  • First, each LED sign panel must be tested for compliance with FCC rules. Accordingly, each panel that differs in design must be tested and authorized separately. The Enforcement Advisory notes that LED sign panels authorized before November 2, 2018 under existing FCC’s procedures remain compliant unless the party later modifies the equipment to require a new authorization. For modified LED panels (and for new LED panels entering the market), the party will need to obtain a new authorization under either the FCC’s certification procedures (i.e., the party submits equipment for testing by an FCC-approved laboratory) or its Supplier’s Declaration of Conformity (“SDoC”) procedures (i.e., the party certifies that it tested the equipment for compliance with technical standards).
  • Second, each authorized LED sign panel must comply with all labeling requirements. In particular, equipment authorized through SDoC procedures should be labeled with a unique identifier and include a compliance information statement provided electronically or in some other form easily accessible to end users, while equipment authorized through certification procedures should carry an FCC-issued identifier.
  • Third, marketers of LED signs should retain records demonstrating their compliance with the FCC’s equipment authorization rules, such as copies of test reports and compliance statements.
  • Fourth, marketers of LED signs that rely on SDoC authorization procedures must ensure that the party responsible for compliance with the FCC’s equipment marketing rules is located in the United States. This allows the FCC to easily contact the appropriate party when the equipment was not subject to testing by an FCC-approved laboratory.
The Enforcement Advisory cautions that parties marketing noncompliant LED signs may be subject to penalties of over $20,000 per day for individual violations, and over $150,000 for “continuing” violations that occur over an extended period of time. As equipment marketing violations often involve online advertisements or other ongoing retail activities, violations can quickly pile up to reach the maximum fine. In addition, the FCC has taken a “per model” approach to equipment marketing violations that assesses penalties for each piece of unauthorized equipment, even when the pieces were marketed together. As a result, equipment marketing violations can lead to significant fines and the stranding of unauthorized inventory. Importers and retailers of LED signs therefore should take action now to evaluate their current equipment marketing compliance practices in line with the Enforcement Advisory and identify potential improvements. LED sign manufacturers and retailers would be well advised to contact experienced counsel to determine how to comply with the FCC’s rules.

FCC Seeks Input on Revising and Eliminating Older Rules Sun, 19 Aug 2018 10:05:54 -0400 As summer begins to wind down, the FCC will begin considering whether to revise or eliminate decade-old regulations, including certain rules related to the Universal Service Fund (“USF”), equipment authorization procedures, and disabilities access. The FCC kicked off its review with a Public Notice under the Regulatory Flexibility Act, which requires federal agencies to reexamine regulations within 10 years of their adoption to assess the continued need for the rules, the rules’ complexity, and whether the rules overlap or conflict with other federal regulations. The purpose of the review is to ensure that older, unnecessary rules do not remain on the books, lowering the compliance burden for smaller businesses. Although the FCC rarely eliminates a rule outright as part of this review, the comments received can help the agency identify improvements for future rulemakings or flag potential compliance issues.

The FCC’s current review will look at rules adopted in 2005-2006 and covers a number of major regulatory areas. For example, the FCC asked for comment on certain USF rules, including:

  • the agency’s definition of “rural area” in the Rural Health Care Program;
  • certain eligibility requirements for carriers to qualify to receive high cost or Lifeline USF support, including the demonstration of compliance with consumer protection and service quality standards, the public interest standard, and the requirement to provide a copy of any eligible telecommunications carrier (“ETC”) petitions to affected Tribal governments;
  • certain annual reporting obligations for high cost fund recipients; and
  • the certifications that must be made by schools and libraries to obtain E-Rate funds.
The agency will also take comment on several provisions of the rules related to international section 214 authority to provide telecommunications between the U.S. and foreign points, including license applications and transfers of control.

The FCC also will review its equipment authorization procedures, particularly the testing and certification requirements for software defined radios. As we previously highlighted, the FCC has taken a number of recent enforcement actions against small- to medium-sized manufacturers for equipment marketing violations, which often involve complex testing and disclosure obligations.

Disabilities access rules will be reevaluated as well, such as the technical standards and carrier contribution mechanisms for the Telecommunications Relay Service that helps facilitate communications by persons with hearing or speech disabilities. Moreover, the FCC will re-assess the requirements on wireless providers and mobile device manufacturers to offer a sufficient selection of hearing aid-compatible handsets.

The range of topics covered by the FCC’s review is indeed wide and presents an opportunity for all stakeholders to submit their thoughts over the coming months on how these rules should be expanded, contracted, or eliminated. The FCC will accept comments until October 29, 2018.

FCC Proposes Maximum Penalties for “Egregious” Marketing Recreational RF Devices Able To Operate In Restricted Radio Bands Mon, 11 Jun 2018 19:26:53 -0400 On June 5, 2018, the Federal Communications Commission’s (“FCC’s” or the “Commission’s”) Enforcement Bureau (“Bureau”) issued a Notice of Apparent Liability against a manufacturer and retailer for marketing non-compliant RF devices, a dozen models of which were capable of operating in restricted spectrum bands. The FCC proposes to assess a total fine of $2,861,128.00 against ABC Fulfillment Services LLC and Indubitably, Inc. (collectively, “HobbyKing”) for equipment authorization rule violations involving 65 models of recreational audio/video transmitters (“AV Transmitters”) used with model airplanes drones. But more than $2.2 million of that resulted from the fact that twelve models apparently operates in restricted radio bands and three at higher powers than authorized in other bands. The restricted bands are those in which unlicensed transmitters are not allowed to operate because of potential interference to sensitive radio communications. In the case of HobbyKing’s the Commission found that its AV transmitters operated in bands where important government and public safety operations, such as those of the Federal Aviation Administration managing commercial and passenger flight traffic, doppler weather radar, flight testing, and other activities the FCC has determined are particularly worthy of heightened interference protection take place. In other words, the moral is that marketing devices that do not have proper equipment authorization is bad, but doing so when the devices operate within restricted bands is quite simply “egregious,” as the NAL put it.

HobbyKing markets its devices on its website, The devices in question operate in various amateur bands between 12450 and 5925 MHz, but the troubles for HobbyKing emerged because the devices also operate on other bands, including several restricted bands, and some models operate at higher powers than permitted under the FCC rules. In 2015, the Bureau received several complaints against HobbyKing, which resulted in a Marketing Citation for violations of Section 302 of the Communications Act as well as Sections 2.803 and 2.925 of the FCC Rules for illegal marketing of two noncompliant AV transmitters. Further complaints surfaced in 2017, which led to a Bureau Letter of Inquiry (“LOI”). Apparently, HobbyKing received the LOI, but failed to respond fully, which led to another Citation – this time for failure to respond to the LOI (the “LOI Citation”) – and the Bureau ordered a response, but the company did not respond fully, according to the NAL. But the response was enough for the Bureau to determine that HobbyKing continued to market transmitters that required, but did not have, equipment authorization. The devices operated on both amateur as well as non-amateur frequencies, which negated HobbyKing’s ability to rely on an exemption from equipment authorization that operate only on amateur frequencies (and adhere to otherwise applicable technical requirements). Three of the 65 models in question also operated at power level that exceeded the limits the Commission established for amateur commend of model aircraft.

(The Commission explained in the NAL: “The Commission generally has not required amateur equipment to be certified, but such equipment must be designed to operate only in frequency bands allocated for amateur use. If such equipment can operate in amateur and non-amateur frequencies, it must be certified prior to marketing and operation.” To reinforce these points, on the day of the NAL, the Bureau issued an Enforcement Advisory, which we covered in an earlier blog post.)

In addition to erroneously thinking (at one time, at least) that its devices qualified for the exemption applicable to devices that operate only on amateur frequencies, the company also claimed that it does not market its devices to U.S. customers. But apparently there is substantial evidence to the contrary, including the fact that their website says they ship worldwide and HobbyKing has a New York office and customer service operations in the United States. Also worthy of note, on July 3, 2017, they posted on their Instagram account, “Wishing our US customers a very happy Independence Day!”

Taking into account the totality of the circumstances, the Bureau proposed a forfeiture of almost $2.9 million. Providing a window into its thinking, the Bureau started with a base penalty amount of $7,000 for 65 models, a total of $455,000. For the fifty models that were operated without equipment authorization, the Bureau adjusted each penalty by $5,250 for repeated and continuous violations, namely engaging in the same type of marketing misconduct that led to the Marketing Citation HobbyKing after that Citation was issued. For those fifty models, the total proposed penalty is $612,500.

For the remaining fifteen models, the Bureau proposes the Commission issue the statutory maximum penalty of $147,290. Twelve of these devices, as noted above, operate in restricted bands in addition to amateur bands, and three of the AV transmitters exceed the power limits in the amateur bands in which they operate. Consequently, none of these fifteen devices could have received an equipment authorization. Under any circumstances, they could not be marketed in the United States. For these, the Commission issued a proposed penalty of $2,209,350.

Finally, the Commission tacked on an additional penalty of $39,278 for HobbyKing’s failure to respond to the LOI in the first instance and then to the LOI Citation, despite repeated opportunities to answer. The Bureau’s NAL treated HobbyKing’s failure to respond to the LOI and LOI Citation as individual, non-continuing violations and proposes to apply the statutory maximum of $19,639 for such violations in each case.

This NAL and the reasons for the aggravation of the penalty from base amounts reflects a number of lessons. Several of the key ones are: One, parties receiving inquiries or follow-up from the Commission should respond. Two, when parties don’t respond at first and are reminded of their obligation to respond to Commission inquiries or LOIs, they should respond. Three, companies marketing devices under their own brand name (or not), even if they do not manufacture them, are responsible for ensuring that they are marketing complaint devices. Four, parties should understand the rules that apply to the devices they market to ensure whether they have the proper authorization or are even eligible for authorization. Five, if companies think the devices they manufacture or market qualify for an exemption from the FCC’s equipment authorization rules, they should double check to be sure they meet all of the conditions for the exemption. Six, unlicensed devices that operate in one or more restricted bands cannot be authorized (absent an affirmative FCC waiver) and therefore cannot imported, marketed, or operated in the United States. Seven, companies that market RF devices only over the web must be mindful of what countries they are marketing to and what the regulatory requirements are in those countries.

The two significant equipment authorization enforcement actions in recent days – we direct you also to our post on the Pure Enrichment NAL released in late May -- rightfully makes one wonder if there are more to come in short order.

This Time It’s Drones: FCC Reminds Retailers, Manufacturers, and Operators of Responsibilities Regarding Equipment Authorization Thu, 07 Jun 2018 17:09:55 -0400 Simultaneously with issuing a nearly $3,000,000 fine to HobbyKing for marketing unauthorized (and in some cases not capable of being authorized) audio/video (“AV”) transmitters for use with drone mounted cameras, the Federal Communications Commission’s (“FCC’s” or “Commission’s”) Enforcement Bureau issued an Advisory Tuesday reminding retailer manufacturers, and operators of their obligations: no marketing or operation of unauthorized equipment except under very limited exceptions.

Having observed a growing number of websites that advertise and sell noncompliant radio accessories, specifically AV transmitters, intended for use with drones, the Bureau thought it was time to remind the public that advertising, selling, or otherwise marketing such devices if they are not certified under the FCC rules is generally illegal, as is using them. Only if AV transmitters operate exclusively within frequencies authorized for use only by amateur licensees may they be marketed without certification (although they must comply with all other relevant rules) and, if then, use is permitted only by licensed amateur operators. (Other operators of such devices that fall in the exception may be subject to penalties.) If AV transmitters operate on frequencies that fall outside the designated amateur frequency bands, even if they also operate within the amateur bands, they must first have a proper FCC certification before they can be advertised, sold, or operated within the United States. If they do not, then the Enforcement Bureau reminded the public that manufacturers, retailers, and operators may be exposed to substantial monetary penalties, citing recent cases ranging from $190,000 to $2,900,000 in forfeitures, and the regulatory limits of fines up to $19,639 per day of marketing violations and up to $147,290 for an ongoing violation.

The Advisory reminds the public that its equipment authorization-related requirements and potential penalties apply to all equipment, regardless of the country of origin, albeit the FCC regulations do not apply to equipment used by Federal government agencies, although the Department of Commerce (“DOC”) and its National Telecommunications and Information Administration (“NTIA”) may impose their own requirements for Federal agency use.

The Bureau reminds retailers and manufacturers to take the time to learn the FCC rules governing equipment authorization and comply with them. The Advisory recommends that drone operators, when buying accessories that either are electronic or have electronic components, should ensure that these devices or components are properly labeled as FCC-compliant. The Bureau also reminds individuals without amateur licenses that they may not use drone equipment, such as AV transmitters that operate only on amateur frequencies, that is designed solely for use by amateur licensees.

A Case of Bad Hygiene? FCC Proposes More Than $590,000 Penalty for RF Device Marketing Violations, and Commissioner O’Rielly Foreshadows Potentially Tougher Equipment Authorization Enforcement Policies Tue, 05 Jun 2018 17:28:54 -0400 On May 30, 2018, the Commission issued a Notice of Apparent Liability (“NAL”) proposing a total penalty of $590,380 against a company for marketing noncompliant radio frequency (“RF”) devices in apparent violation of the agency’s equipment marketing rules. The allegations in the NAL provide a textbook example of how a company that becomes aware of a violation relating to products subject to the Commission equipment authorization procedures should not respond. The NAL was issued against Bear Down Brands, LLC, dba Pure Enrichment (“Pure Enrichment”), a Delaware company, in connection with fourteen models of the company’s consumer-oriented electronic personal hygiene and wellness devices it markets and imports, all of which were Part 15 or Part 18 unintentional radiators. The NAL alleges that the devices were noncompliant because they lacked proper equipment authorization, failed to make required user manual disclosures, and/or did not have compliant FCC labels.

The Commission’s rules provides that RF devices that are subject to verification or Declaration of Conformity procedures (or the newly adopted Supplier’s Declaration of Conformity ("SDoC") procedures) may not be marketed (which includes importation) unless the device complies with all of the Commission’s applicable technical, labeling, identification, and administrative requirements. Pure Enrichment sells its products – ultrasonic humidifiers, air purifiers, diffusers, electronic stimulator massagers, and personal care products – online and at brick-and-mortar retail establishments. (The products apparently, at least in many cases, are manufactured by contract manufacturers, based on the NAL.) In response to a March 2017 complaint to the FCC that Pure Enrichment’s humidifiers can radiate RF emissions that cause interference “to other appliances” and were not identified as having satisfied the equipment authorization requirements, the Commission’s Enforcement Bureau launched an inquiry in May of that year. Pure Enrichment, in a series of responses, claimed that it was unaware that it was marketing unauthorized models until receipt of the Bureau’s Letter of Inquiry (“LOI”), claiming that it believed that authorization was not required under a Commission exemption embodied in a Commission Laboratory Knowledge Database Publication certain (but not all) household appliances. Pure Enrichment acknowledged in responses to the FCC during the investigation that (i) five models lacked proper authorization, required user manual disclosures, and FCC labeling (ii) seven models had an authorization but lacked the required user manual disclosures and FCC labeling; and (iii) two models had an authorization but lacked user manual disclosures

Pure Enrichment provided the Commission a list of apparently noncompliant Part 15 and Part 18 radio frequency devices it marketed and imported into the United States, as well as revenues and other information about its sales of such noncompliant devices. Apparently, it continued to market the non-complaint devices after receiving the LOI and acknowledging that a number of the models were out of compliance. A number of the devices also failed to include the information required by the Commission’s rules to be included the user’s manual and/or other permitted means conveying that information to the user. This included information necessary to ensure the device is complaint with technical requirements and to instruct the user to take steps to mitigate any harmful interference caused by the device. Further, the labels required by the FCC’s rules were missing or improper. Some, but apparently not all, manuals and labels were corrected by Pure Enrichment over a three-month period following the receipt of the LOI, but it seems non-compliant product already held by third-party “logistics providers” in the United States continued to be marketed.

Even after becoming aware of the apparent violations, Pure Enrichment continued to market the fourteen models while it took corrective measures. Pure Enrichment apparently achieved compliance for thirteen of the fourteen as of February 15, 2018, but continues to market one noncompliant model that lacks the proper user manual disclosures and FCC labeling in apparent violation of the Commission’s rules.

In the NAL, the Commission proposes to apply the $7,000 base forfeiture for the marketing of unauthorized equipment to each of the fourteen models that failed to comply with the Commission’s equipment marketing requirements at some point within the last twelve months, resulting in an aggregate base forfeiture of $98,000. The Commission then applied several aggravating factors to arrive at the proposed penalty of 590,380, in particular, the intentional nature of the violations, Pure Enrichment’s resulting economic gain, and the duration and scope of the violations. As for intentionality, Pure Enrichment continued to market the noncompliant devices after becoming aware of the FCC’s investigation and then after acknowledging the noncompliance, despite later corrections covering thirteen of the fourteen devices in question. The continued marketing prior to correction resulted in revenues, which the Commission also took into account, but which data the NAL withholds from the public as confidential. As to scope and duration, the NAL notes that more than half of the devices in question allegedly suffered from at least two rule violations and that nine of the fourteen devices were marketed for more than a year, and some up to three years The Commission found no mitigating factors, underscoring that initial misunderstanding and confusion whether all of the models required authorizations provided no basis for a downward adjustment of the proposed forfeiture.

Commissioner Michael O’Rielly filed a concurring statement in which he was appreciative of the increase in proposed penalty almost $500,000 above the base amount, but he argued for reform of the enforcement process to make it more hard hitting. His statement reflects that the Chairman, at his behest, has committed to review the FCC’s forfeiture policies in the future. Commissioner O’Rielly would like to see baseline penalties that are more reflective of the severity of violations, diminishing reliance on upward adjustments and, he contends, improving the transparency, consistency, and credibility of the Commission’s enforcement process. Thus, for example, he raises concerns because, according to him,”[t]he base forfeiture is $7,000 for any model that does not comply with [the equipment authorization] requirements . . . regardless of whether one device of a certain model was sold or a million” and regardless of net profits or the period of time devices are out of compliance. Ostensibly, Commissioner O’Rielly would like to see base amounts increase in some fashion, literally or as applied.

The Commission’s ability to reset the base forfeiture amount is limited because that is set -- $7000 in the case of “importation or marketing of unauthorized equipment” – under Section 503 of the Communications Act, as are maximum penalties for violations and continuing violations. The discretion of the Commission arises in taking into account aggravating and mitigating factors and determining whether to apply the baseline penalty for equipment importation/marketing violations on a per model basis, as is typical (but not required by the statute) or on a per unit basis.

When and how the Commission moves forward with any policy review in this area of enforcement is certainly something that manufacturers, importers, distributors, brokers, and retailers should watch closely. In the interim, such entities may be well-served to review the processes they have in place to ensure that RF equipment which they import or market in any way adheres to the authorization procedures and information and labeling requirements that apply under the Commission’s rules. As the NAL makes clear, misunderstanding the requirements will likely not be an accepted excuse and rapid action to correct any discovered violations is essential to avoid the magnification of penalties should a complaint be made or an investigation commence.

FCC Equipment Authorization Rule Change Transitions Now in Effect Thu, 16 Nov 2017 16:40:25 -0500 On November 2, 2017, the FCC's revised equipment authorization rules were published in the Federal Register and took effect immediately. Our advisory details those rule revisions. The Office of Management and Budget ("OMB") had earlier determined that the new rules included no changes to the existing information collection requirements that required further OMB review before they could take effect.

The publication firms up the dates for the one-year transition period regarding the continued availability of the current Commission equipment authorization procedures prior to marketing or operation -- verification and Declaration of Conformity ("DoC") -- while the new Supplier's Declaration of Conformity ("SDoC") is also available for use for equipment that qualified under one or both of the two pre-existing processes. During the transition, for affected unlicensed unintentional radiators, one of these processes (or certification as an alternative in some cases) must be followed, as applicable per Section 15.101 of the FCC's rules prior to the new changes (for verification or DoC) or as revised (for SDoC). Note that there were no changes in the recent order to the categories of unintentional radiators that, as an alternative in some instances, also allow use of the certification procedures (which unlike the other processes we've mentioned require application and approval by Telecommunications Certification Bodies).

Through November 2, 2018, unlicensed devices that could have qualified for and have been subject to either the verification or DoC process under the rules in effect prior to November 2, 2017, can continue to use those processes. However, such devices may now go through the new SDoC as an alternative option.

However, responsible parties are well abused to take heed that, for any equipment that was first qualified through the verification or DoC process at any time, if there are changes after November 2, 2018, that would require the modified equipment to undergo a separate authorization process before it can be marketed and operated, those modified devices must go through the SDoC procedure (or certification if available) to cover the changes.

After November 2, 2018, all new models of unintentional radiators (unless there is an exception to the equipment authorization procedures) must go through either the SDoC "self-approval" procedure or, if applicable per Section 15.101, the certification approval process. On and after November 3, 2018, the verification and DoC procedures will no longer be available for any device types. But responsible parties, distributors, and retailers can be assured that equipment authorized under either one of those two procedures being phased out may continue to be marketed and operated indefinitely provided there are no changes requiring a new authorization.

July 2017 FCC Meeting Recap: FCC Adopts Major Changes to Approval Procedures for Many RF Devices, E-Labeling, Importation Regulations, and Other Equipment Authorization Rules Fri, 21 Jul 2017 15:51:20 -0400 The Federal Communications Commission (“FCC” or “Commission”), at its July 13, 2017, Open Meeting updated its equipment authorization procedures and rules in a number of ways that will be of great interest to everyone in the supply chain for both licensed and unlicensed radio frequency (“RF”) equipment, including manufacturers, importers, wholesalers, distributors, and retailers. The First Report and Order changes the regulatory landscape applicable to the approval, labeling, and other compliance matters for RF equipment in a variety of ways that will take place immediately upon publication of the First Report and Order in the Federal Register except that some will be delayed to the extent they implicate Office of Management and Budget, OMB, review of new or modified information collection requirements.

We examine the First Report and Order and the principal changes in more detail in the referenced advisory.

Briefly, the FCC eliminated the verification and Declaration of Conformity (“DoC”) self-approval procedures from its rules, subject to a one-year transition. In their place, there will be a new procedure covering the same categories of devices now subject to one or the other of the existing procedures. The Supplier’s Declaration of Conformity (“SDoc”) process amalgamates certain pieces of the two existing procedures and implements some entirely new requirements. Among other things, testing by accredited laboratories will not be required for devices qualifying for SDoC treatment, although the Commission may ask for test records. And the FCC also makes clear that users must be apprised of the party responsible for compliance, be provided appropriate contact information, and the responsible party must have a U.S. presence. Any equipment self-approved using the verification or DoC process prior to the end of the one-year transition period will enjoy a valid authorization for marketing and operation purposes in perpetuity, provided the equipment is not modified so as to require a new authorization

In addition, the Commission codified and refined when e-labeling will be permitted to meet certain labeling and compliance statement requirement for RF devices that have integrated digital displays. This action implements certain portions of the Enhance Labeling, Accessing, and Branding of Electronic Licenses Act (“E-LABEL Act”). The FCC adopted a maximum “three step” access requirement when electronic labeling is permissible and utilized, noting that the FCC’s Office of Engineering and Technology (“OET”) will provide guidance in response to specific questions regarding compliance via the KDB inquiry process. (Electronic labeling is never mandatory.) Step one would 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 the Office of Engineering and Technology (“OET”) to continue to provide guidance in response to specific questions regarding compliance via the KDB inquiry process. The e-labeling rules address certain specific and general scenarios exceptions where e-labeling will not be permitted, caution that temporary labels must still be used where a manufacturer exercises the e-labeling option, and require that appropriate instruction be provided separately for accessing the electronic labeling and compliance information. E-labeling is never mandatory.

Further, the Commission streamlined some aspects its importation rules, including the elimination of the requirement to file FCC Form 740 customs declarations. Yet, certain obligations of the Commission’s importation rules remain, and the FCC clarified the obligations of the responsible party, for imported devices, to determine and to be able to demonstrate compliance. The FCC observed that it is not changing any regulations of Customs and Border Patrol (“CBP”) and will not be seeking any changes from CBP. The agency also modified its rules to increase the number of devices that could be imported for trade show purposes and retained (and clarified) an importation exemption that applies to unintentional radiators that operate only on low level battery power, such as greeting cards, calculators, and quartz watches.

Finally, the Commission modified its rules on measurement procedures to include more direct cross-references to guidance from the FCC Laboratory’s Knowledge Database (“KDB”) and made other rules changes to clean up and clarify rules regarding the applicability of and certain alternatives to certain measurement procedures referenced in the rules, including ANSI C63.4-2014, ANSI C63.10-2013, and ANSI C63.26-2015.

FCC Authorizes First LTE-U Devices Thu, 02 Mar 2017 13:25:12 -0500 Wireless carriers are a major step closer to using unlicensed spectrum to ease network congestion and boost speeds following the FCC's authorization of the first LTE-Unlicensed (“LTE-U”) devices on February 22, 2017. LTE-U technology allows carriers to deliver mobile traffic over unlicensed spectrum in the 5 GHz band already occupied by Wi-Fi, Bluetooth, and other technologies. The recipients of the equipment authorizations are Ericsson and Nokia. The certifications by the FCC's Office of Engineering and Technology (“OET”) mean that the devices in question satisfy the technical criteria of the FCC designed to prevent harmful interference to radio communications services. Those rules stipulate that unlicensed devices must accept any harmful interference they receive from any source. Unlicensed devices have been certified for decades. The announcement of the certifications of the LTE-U devices represents an important milestone in the FCC's recent focus on spectrum sharing and broadband deployment because these devices are specifically designed to support broadband and work in an integrated fashion with commercial mobile broadband providers’ networks. In short, this is not just a pumped up version of Wi-Fi offload, which carriers have used for years to relieve congestion on mobile networks. These devices mean that the hundreds of megahertz of 5 GHz spectrum that the cable and unlicensed communities fought for years to gain access to – the so-called Unlicensed National Information Infrastructure (“U-NII”) bands – will now be available for LTE technologies.

Wireless carriers generally hold exclusive licenses to operate in certain spectrum, while Wi-Fi, Bluetooth, and many other devices operate without radio licenses provided they can show adherence to certain emissions and other technical requirements designed to protect licensed services. The LTE-U authorization follows years of wireless industry pressure to open up unlicensed frequencies to offload mobile traffic and ease network congestion. The ability to offload traffic to Wi-Fi has become increasingly important as the demand for streaming video continues to grow. LTE-U only works over short distances, but its supporters highlighted its potential to improve over Wi-Fi capabilities using the U-NII spectrum to deliver gigabits of data at LTE speeds while improving capacity in buildings and city centers. However, LTE-U faced opposition from cable and internet service providers concerned that increased traffic would degrade the performance of Wi-Fi, Bluetooth, and other technologies operating in the same spectrum. Opponents noted that Wi-Fi networks already carry the bulk of mobile device traffic and asked the FCC for more time to evaluate LTE-U technology.

The Wi-Fi Alliance developed co-existence guidelines for Wi-Fi and LTE-U and released an evaluation test plan in late 2016. Tests have been conducted under the plan and, while the head of OET stated last week that he understood the LTE-U devices were evaluated successfully under that test plan, he emphasized that the certifications, as is the case with all equipment authorizations, merely demonstrated that the LTE-U devices in question met the FCC’s unlicensed device technical requirements for operation in certain bands. The devices have not been certified to not cause interference to or receive interference from Wi-Fi devices.

Following the authorization, multiple carriers announced their plans to deploy LTE-U devices in the next few months, with other wireless providers expected to follow suit. The LTE-U devices will complement existing LTE service, using compatible base stations located across the country that also serve as base stations to licensed LTE devices.

These certifications and the carriers’ related announcements of their intent to deploy the devices raise two important questions. First, will the deployment of these devices at scale lead to congestion and interference concerns in the U-NII bands? Cable operators, wireless internet service providers, and other Wi-Fi proponents will be watching closely. Second, will access by carriers using LTE-U devices in the hundreds of megahertz in the 5 GHz band reduce pressure for more licensed spectrum for commercial mobile carriers? The amount of U-NII spectrum available to mobile carriers deploying LTE-U devices is approximately the same, if not slightly more, than all of the spectrum licensed to commercial mobile carriers, and increasingly more and more usage is characterized by subscribers that are effectively stationary, in and near buildings and in public spaces and venues. It will be most interesting whether these certifications, in retrospect, end up being transformational in terms of how the spectrum is managed in years to come.

FCC Form 740 Importation Filings for Radio Frequency Devices Will Be Temporarily Suspended Late Next Year Thu, 05 Nov 2015 10:49:10 -0500 Imported Radio Frequency (RF) devices must be compliant with the Federal Communications Commission's (FCC or Commission) equipment authorization rules, but importers can look forward to some relief in their paperwork next year. These entities will receive a 6-month and possibly longer break from filing FCC Form 740 (Form 740) documentation with Customs and Border Protection (CBP) or the FCC. Today, the FCC published a Suspension Order in the Federal Register announcing it will temporarily waive the filing requirements associated with Form 740 on imported RF devices, effective July 1, 2016 through December 31, 2016.

CBP is deploying a new electronic filing system, the Automated Commercial Environment (ACE), which will not be capable of accepting Form 740 information without significant modification and which is only scheduled to become completely operational as of December 2016. Currently, all FCC Form 740 filings are made electronically through CBP’s current system, the Automated Commercial System (ACS), with only relatively few filings made via paper with CBP and the FCC. The ACS is scheduled to no longer accept electronic filings of Form 740 as of July 1, 2016. Without a waiver, and until the ACE can accept Form 740, the Commission expects a massive influx of paper filings after July 1, 2016, upwards of 20,000 filings at both the FCC and CBP, a tremendous burden on both filers and agencies alike. The Commission is therefore suspending the required documentation and submission rules (47 USC §§ 2.2103 and 2.1205) so as to avoid uncertainty as to how soon after December 31, 2016 the ACE may be able to accept Form 740.

To be clear, until July 1, 2016, entities importing RF devices must continue to submit declarations to CBP either by completing Form 740 and attaching a copy to its customs import papers at ports of entry or by submitting the required information electronically with its entry documentation submission through the ACS.

In a Notice of Proposed Rulemaking adopted in July of this year, the Commission proposed to amend the required declaration rule (§ 2.1203) and remove the filing requirements (§2.1205). Given the complexity of the rulemaking, the Commission opted to clarify that it is temporarily suspending the rules for six months as of June 31, 2106, giving itself time to further investigate whether to eliminate, modify or retain the two rules.

During the six month suspension, the restrictions on marketing RF devices, including importation of such devices, will still apply fully. In short, importers would do well to keep in mind that they must still comply with FCC's marketing rules for RF devices under § 2.803: "no person may market a radio frequency device" unless the device has either been authorized and is properly identified and labeled; complies with all technical labeling, identification and administrative requirements; or for those devices not requiring an equipment authorization but compliance with specified technical standards prior to use, complies with all applicable, technical, labeling, identification, and administrative requirements.” (Certain exemptions from the marketing rule exist.) In addition, the Suspension Order will not prevent FCC representatives from inspecting or testing any imported RF device for compliance with the technical rules. And any required importation-related filings with other federal agencies that may regulate particular RF devices are unaffected by the FCC’s Suspension Order. Nonetheless, importers will no doubt appreciate the break from this one piece of bureaucratic red-tape.

The Commission will likely publish more on the fate of Sections 2.2103 and 2.2105 as it progresses in its analysis. Importers should keep abreast of Commission decisions whether to extend the waiver regarding Form 740 (which the FCC’s Office of Engineering and Technology (OET) has received delegated authority to do through the end of the current rulemaking), make the suspension permanent, or resume or modify the obligations to submit the Form, so as to be sure of their obligations come January 1, 2017.

Comment Dates Announced for NPRM to Streamline Equipment Authorizations Thu, 06 Aug 2015 18:25:33 -0400 On August 6, 2015, a summary of the Federal Communications Commission's (“FCC's") Notice of Proposed Rulemaking (“NPRM”) proposing changes to further streamline the FCC's equipment authorizations procedures was published in the Federal Register. The NPRM seeks comment on several proposals to update and modify the rules governing the procedures Radiofrequency (“RF”) devices must satisfy prior to being marketed. Review our earlier blog post for more information.

Comments are due on or before September 8, 2015 and reply comments are due on or before September 21, 2015.

FCC Proposing to Further Streamline Equipment Authorizations Mon, 27 Jul 2015 23:14:46 -0400 iStock_000036215158LargeLast week, the Federal Communications Commission (“Commission”) released a Notice of Proposed Rulemaking (“NPRM”) seeking comment on several proposals to update and modify the rules governing the procedures Radiofrequency (“RF”) devices must satisfy prior to being marketed. Comments are due September 8, 2015 and reply comments are due September 21, 2015.

The communications industry and the “RF equipment ecosystem” has changed dramatically since the last Commission’s last comprehensive review of its equipment authorization rules in 1998. Recognizing that it is easier than ever to design, manufacture and bring new RF equipment to market, the Commission has attempted to respond to these trends by taking actions aimed at streamlining and simplifying the equipment authorization program. In a recent blog post, we reported that new rules took effect in early July 2015 to expand the role of Telecommunications Certifications Bodies (“TCBs”) in the certification process. In the current NPRM, the Commission issues proposals to further streamline equipment authorization procedures while being mindful of maintaining sufficient safeguards to ensure that these RF devices comply with FCC rules and do not cause harmful interference.

The NPRM includes several key proposals:

  • Unify the self-approval procedures. The Declaration of Conformity (“DoC”) and verification procedures are currently independent requirements for authorization. The NPRM proposes to combine them into one self-approval program for all equipment currently subject to one of those two procedures. The proposed new process, tentatively called a Suppliers Declaration of Conformity (“SDoC”), would eliminate the current obligation to use accredited laboratories but would clarify that all devices currently subject to the DoC or verification procedures must be tested. The proposed process would incorporate some but not all elements of the SDoC processes used for Telephone Network Terminal Equipment under Part 68.
  • Update Certification Procedures. The Commission proposes updates to the certification requirements to respond to the trend of authorizing components, including modular transmitters, that will be used as part of more complex designs or in third-party host devices. The proposals focus on the parties responsible for submitting applications. The Commission proposes to amend the basic certification rules to allows for the certification of a group of related devices under a single FCC ID. Additionally, the Commission proposes to relocate the rules for modular transmitters from Part 15 to Part 2 in light of the increasing use of modular transmitters in RF devices intended for operation within licensed radio services. The NPRM also proposed changes to the software defined radio (“SDR”) rules to increase flexibility in certifying devices where the RF elements are controlled by software.
  • Updated Certification Modification Process. The NPRM proposes to eliminate the current “electrically identical” framework for determining whether a device requires a new certification. Instead, there would be two categories of changes, those that require a new FCC ID and those that do not. The proposed rule changes would require an evaluation of the modifications, and potentially testing, to determine the change category. Changes that do not substantially alter the overall function of the device will not require a new FCC ID, but in some cases may still require a new application for certification. Where a new FCC ID is required, due to substantial changes to design or layout, or replacement of components, a new certification would be a prerequisite.
  • Clarification of Responsible Party. The NPRM proposes to clarify who the responsible party is for obtaining certification in a number of scenarios, including when end products incorporate modular transmitters, third parties modify equipment , parties intend to market repaired or refurbished devices, and importers bring products into the U.S.
  • Streamlined Certification Application Requirements. The NPRM seeks comment on reducing the information that must be provided when applying for certification. The FCC proposes to reduce duplicative information requirements as well as only require applicants to submit specific information based on the type of device to be certified. The NPRM proposes to codify existing short-term confidentiality practices for certain types of information allowing for a standard 45 day period upon request and seeks comment on extending that period to 180 days. Further, long-term confidentiality would be provided automatically for certain information categories (such as exhibits of schematics or operational descriptions) in all certification applications.
  • The E-LABEL ACT. The NPRM also seeks comment on a series of updates to the equipment labeling obligations to recognize and codify the requirements of the E-LABEL Act. For example, the proposed rules will generally allow an RF device with an integrated electronic display to electronically display the labels required by the FCC rules. However, even where devices have integrated displays, parties would still be required to place warning statements or other information on device packaging, within user manuals, or at the point of sale as otherwise required under FCC regulations.
  • Importation Requirements. The NPRM questions the usefulness of the information provided on the current FCC Form 740 declaration for imported devices, particularly since much of the information is already collected by the U.S. Customs and Border Patrol and may also be available on the internet. The FCC seeks comment on the continued use of collecting Form 740 information. The NPRM also proposes changes, among other things, to the number of imported devices permitted for demonstrations at trade shows and in other instances prior to satisfaction of the relevant equipment authorization procedure.
The proposed new rules and procedures have the potential to impact how RF devices are designed and/or manufactured and could have an immediate impact on devices that are currently in testing or that will be coming to market in the near term. To alleviate these concerns, the NPRM seeks comment on a transition period. The Commission anticipates that the proposed rules, if adopted, would be effective immediately but that responsible parties would be permitted to elect to continue to use the existing procedures for up to one year after the effective date of the rules.

New FCC Equipment Authorization Rules to Take Effect July 13, 2015 Thu, 02 Jul 2015 00:15:07 -0400 In an earlier blog post, we reported on the Federal Communications Commission's December 30, 2014, decision to expand the role of Telecommunications Certifications Bodies (“TCBs”), requiring them to process all applications for transmitters and other equipment subject to the certification procedure. The FCC's Order was recently published in the Federal Register, establishing the effective date for the new rules as July 13, 2015. As of that date, the FCC will no longer accept new applications for equipment authorization, and all such applications must be sent to TCBs. However, as before, only the FCC will be able to grant rule waivers associated with such applications, so advance planning remains paramount where a waiver is needed.

Among other changes, existing unaccredited laboratories that have heretofore been recognized as providing testing services to support certification applications under criteria in Section 2.948 of the FCC’s Rules will be recognized only through the expiration date of their submissions for recognition as such, after which time they will have to be accredited under the FCC's rules to continue to perform testing for certification applications. Testing from such Section 2.948 laboratories will only be accepted through July 13, 2016, and may support certification applications only until 15 months after the effective date. Manufacturers and other responsible parties should take heed of this change and ensure that they choose laboratories with the proper qualifications for the certification and Declaration of Conformity procedures.

Further, the new rules update 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 (subject to certain limited qualifications). Transition provisions apply by which earlier currently acceptable versions of these standards (e.g., ANSI C63.4–2003, ANSI C63.4–2009, and ANSI C63.10-2009) may still be used through July 13, 2016.

Additional changes are discussed in our earlier blog post and in the Order itself, summarized in the Federal Register.

Register Today for Kelley Drye's Upcoming Equipment Authorization Webinar—April 2, 2015 at 12 PM ET Mon, 23 Mar 2015 11:50:08 -0400 fcc_equipEvery aspect of American life today seems to involve interaction with an increasing number of digital devices, sensors, and other electronics. Estimates are that by 2020, there will be more than 50 billion devices tied into the Internet of Things. Even apart from the IoT, there are myriad opportunities in today's market for the productive and profitable deployment of new technology and applications. The equipment that makes this possible is subject to a broad framework of FCC regulation designed to protect wireless communications from harmful interference applicable to manufacturers, retailers, importers, distributors, and other parties involved in marketing, selling, and using the devices. Any device or other equipment capable of radiofrequency emissions or radiation, whether incidentally or by design, is subject to this regulatory regime. As the equipment authorization rules continue to evolve, manufacturers and marketers will want to keep pace to ensure compliance. The FCC's stepped up enforcement activity also impacts the companies that manufacture and market radios, digital devices, and other electronic equipment subject to the rules. The Commission can impose strict sanctions on entities that violate the rules including substantial fines, prohibitions on marketing and advertising non-compliant equipment, and removal of existing equipment from commerce.

Please join Partner Chip Yorkgitis of the Communications Practice Group of Kelley Drye & Warren LLP on April 2, 2015, for a webinar addressing the FCC's equipment authorization and marketing rules as well as the FCC's recent enforcement actions associated with this equipment capable of causing harmful interference. They will discuss practical steps companies can take to ensure they remain compliant. This webinar is designed for manufacturers, importers, distributors, and vendors of all types of digital and electronic equipment that fall under the broad scope of the FCC's regulations. These companies should familiarize themselves with, and stay current with, the FCC's rules, and implement procedures to ensure that their devices are in compliance with the pertinent regulations.

This webinar is free of charge for all participants.

**This event has occurred in the past. To access a recording of the webinar, please click here. For a copy of the slide presentation, please click here.

From FitBit to Quitbit: The Role of Federal Agencies and Consumer Electronics Thu, 15 Jan 2015 18:07:50 -0500 stock_02042015_0367

The annual International Consumer Electronics Show (CES), held each year in early January, is a showcase for the latest gadgetry trends. The recently-concluded CES 2015 featured innovation in a variety of forms, not the least of which are products with a health-related focus. From the FitBit to track steps to the Quitbit to track progress in quitting smoking, the number of products recording consumer behavior continues to proliferate.

Techies and ordinary consumers aren’t the only ones interested in all things electronic, however. Numerous government agencies have jurisdiction over these products depending on their functionality, including the Federal Trade Commission (FTC), the Food and Drug Administration (FDA), and the Federal Communications Commission (FCC). A few products featured at this year’s CES demonstrate this intra-agency overlap.

For example, the “Breathometer Breeze Breathalyzer” features the following claims: it can detect blood alcohol levels with the same degree of accuracy as policy breathalyzers, tell consumers when their blood alcohol content will be 0.0, and has a “home safe” function that allows consumers to call a car service or friend to help them get home safely. The product purportedly is a Class I medical device that can connect to smartphone apps via Bluetooth.

At least three federal agencies would have some level of jurisdiction over this product. The FTC’s main concerns likely would be claim substantiation relative to the performance claims and consumer privacy. As the nation’s leading public health agency, the FDA also has an interest in ensuring that the product is safe and effective and that representations regarding product performance are truthful and not misleading. Finally, given the use of radio spectrum and connectivity to smart phones, the FCC also would have jurisdiction over the manufacture, marketing, and use of these devices.

Similar degrees of overlap can be found with other products featured at CES such as the following:

  • Pacifi Smart Pacifier – Takes temperature, records when medications are administered.
  • OKU Skin Health Sensor – Uses an optical sensor to analyze the relative state of the user’s skin to send readings on moisture, oils, and wrinkles.
  • Liif – A “never forget” pillbox that reminds the users and caregivers when should be dispensed and sends alerts if it appears that doses are missed.
  • Fitguard Mouthpiece – A mouth guard designed to help detect concussions and other brain injuries in contact sports.

All of these products connect to a smartphone app or other device. As such, like the Breathometer Breeze Breathalyzer, each of them is subject to the FCC’s regulatory regime and likely would be under either the jurisdiction of FDA, FTC, or both given their intended use and product claims.

The lesson for companies marketing these products or seeking to incorporate technology into their existing products is the importance of regulatory awareness. It is key during the product development phase to determine which agencies may have jurisdiction over the product and how that may impact product functionality, claims, labeling, warnings, etc. Further, as a broader matter, it is important for companies in this sector to be aware of the governing agency’s stated concerns relative to the “Internet of Things” and how these products and the information generated by them affect consumers. For example, in her remarks at CES, FTC Chairwoman Edith Ramirez’s called on companies to enhance their data security and privacy practices to build consumers’ trust relative to health-related devices. Marketers of health-tracking devices can best respond to these and other regulatory concerns by factoring them in to the products’ design and functionality at the outset.

Kelley Drye has responded to industry’s increased focus on technology by creating a cross-functional practice team that combines the consumer products knowledge of our Advertising and Marketing and Consumer Product Safety Practice Groups with the technical knowledge of our Telecommunications Practice Group. We assist clients with counsel related to wearable health technology and accompanying labeling relative to its potential classification as a medical device, as well as health and performance claims made in advertising and marketing and consumer product safety considerations.

We also advise clients regarding FCC regulatory requirements affecting the manufacture, labeling, importation, and marketing of consumer electronic devices that intentionally or unintentionally emit or use radio waves; spectrum allocations and rules concerning the design and use of unlicensed and licensed radio frequency devices in the United States; and regulatory compliance, investigation, and enforcement matters involving radio frequency devices.