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

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.

The modified equipment authorization rules will take effect 30 days after publication in the Federal Register, which has yet to occur. The FCC will stop accepting equipment certification applications as of the effective date.

The Report and Order adopts a number of other changes, many of which impact TCBs directly:

• TCBs will be required to submit all information related to certification applications and grants to the FCC’s Equipment Authorization System (“EAS”), including pre-approval guidance inquiries made to OET.
• TCBs will be free to establish their own procedures with clients regarding the use of electronic filing and issues of documentation authenticity. The Commission declined to codify any requirements regarding the cost of applications made to TCBs, including charges for expediting applications preferring to let the market decide among TCBs.
• The guidance OET has provided TCBs regarding post-market surveillance has been codified and clarified, including the amount of surveillance (a sample rate of at least 5% of all of a TCB’s certified devices, including permissive changes), the responsibilities related to testing in connection with surveillance, and the timing and content of periodic reports to the FCC. TCBs are required to conduct post-market surveillance only related to those devices for which they have issued grants of certification. Under the rule changes, OET may select the devices for a TCB to test, and the Commission will be the final arbiter in any disputes between TCBs and grantees about whether certain devices comply with the rules.
• Where post-market surveillance testing of a device finds it to be non-compliant, OET will work with the grantee to resolve the matter and ensure compliance going forward, and will refer items to enforcement where non-compliance is the result of willful action as opposed to, for example, changes to the manufacturing process leading to inadvertent non-compliance.
• TCBs may initiate requests for devices for post-market testing from grantees through the EAS system, improving the Commission’s ability to monitor and intervene if necessary.
• Grantees will be responsible, upon request, to issue vouchers to the TCBs and the Commission to allow them to select samples for testing from the marketplace free of charge, or, as an alternative, grantees may allow the TCB or FCC to select a product randomly from the manufacturing or warehousing location. Furthermore, if special software or specialized mechanisms, methods, or modifications are required to test such unmodified production devices, the manufacturer must make these available (at no cost) along with any necessary instructions to the Commission or TCB upon request.
• The National Institute of Standards and Technology's ("NIST’s") role as the Designating Authority for TCBs located in the United States was confirmed.
• Organizations outside the U.S. acting under a Mutual Recognition Agreement may accredit and designate TCBs, but the Commission reserved the ultimate determination of whether to recognize a designated TCB before permitting that TCB to operate. The FCC codified criteria to guide OET’s acceptance of new laboratory accreditation bodies.
• Rules related to TCB performance and withdrawal of TCB recognition were modified. Specifically, the Commission maintained the 60-day notice period prior to withdrawal but noted that circumstances may warrant a shorter notice period, for example if there is an immediate concern regarding a TCB’s capability or its intention to comply with requirements to ensure appropriate certification of devices. The sanctions that FCC can impose vary and may include requiring the TCB to follow the pre-approval guidance procedure for all applications for certification before they can be granted or immediately suspending recognition at the other extreme.

The Report and Order also updates references to industry measurement procedures in the Commission’s rules for Part 15 unintentional and intentional radiators, specifically ANSI C63.4-2014 and ANSI C63.10-2013; provides that revisions to these cross-referenced standards will not take effect until the Commission or OET on delegated authority completes a rulemaking adopting any such change; and establishes specific site validation criteria for test facilities used for making radiated emissions at frequencies above 1 GHz. The Report and Order reflects the FCC’s decision to give the Chief of OET delegated authority to engage in limited rulemaking action, following notice in the Federal Register and an opportunity for comment, in order to modify Parts 2, 5, 15, and 18 of rules to reference updated versions of standards where such standards are already referenced in the rules and to adopt any appropriate transition periods. This process should permit the FCC to better and more rapidly keep pace with changing industry standards than if the Commission were required to complete a full rulemaking proceeding for every widely-accepted and expertly-considered update to references in its rules regarding equipment measurement practices. The Report and Order acknowledges that it is possible that incorporation of some standards updates will be matters more appropriately considered by the full Commission, and OET will be directed to refer matters for review and decision by the Commission if use of an updated standard may raise major compliance issues.

The Commission’s Report and Order is a further step in the evolution of the equipment authorization procedures. By relying more heavily on TCBs, the Commission no doubt hopes that, on average, radiofrequency devices subject to certification can be authorized and, thus, marketed sooner. But the rule changes also make clear the FCC simultaneously intends to keep its hands on the reins to ensure the potential for interference is minimized as ever increasingly advanced products are brought to market and the testing requirements for those products become correspondingly more complex.