The Federal Communications Commission (FCC) recently released a Notice of Proposed Rulemaking (NPRM) to update the rules that govern the evaluation and approval of radiofrequency (RF) devices. Below is a summary of some important issues raised in the NPRM. Comments responsive to the NPRM are due September 8, 2015 and Reply Comments are due September 21, 2015. Please let us know if you have any questions, or if you would like our assistance preparing comments in this proceeding.
The NPRM proposes to:
Combine the Declaration of Conformity (DoC) and verification equipment authorization procedures into a single self-approval program;
Codify and clarify the provisions for certification of modular transmitters and radios where the RF parameters are controlled by software;
Clarify responsibilities for compliance when a final product may be comprised of one or more certified modular transmitters;
Codify existing practices protecting confidential and market-sensitive information;
Codify and expand existing guidance for electronic labeling; and
Discontinue the filing of FCC Form 740 for RF devices imported into the United States.
Test Lab Issues
1. New self-approval program for equipment authorization. The FCC is proposing to do away with the DOC authorization program by combining it with equipment verification to form a “Suppliers Declaration of Conformity” (SDoC) program, similar to what now exists for Part 68 telephone terminal equipment (TTE). Testing of unintentional RF radiators subject to SDoC will not require testing in an accredited laboratory, will not require data base registration (which applies only to TTE), and will not require any review by an independent third party. The FCC logo would also be abandoned, but certain compliance-related information would have to be provided with the product at time of marketing
2. New procedures for modular and software-controlled transmitters. Certification is proposed for three types of RF devices: (a) a device capable of independent operation (the traditional type of device already addressed by the rules); (b) a modular transmitter designed for installation into a host device or as a peripheral to another device; and (c) a host device consisting of one or more modular transmitters certified by other parties. The FCC is also proposing to provide for certification of a group of related devices under a single FCC ID, and asking for comment on whether additional authorization should be required for the assembly of authorized devices by end-users.
3. Modular transmitter rules. The Part 2 rules would contain the requirements for modular and limited modular approvals for both unlicensed and licensed transmitters. These will be the same requirements as currently set forth in Rule 15.212 and KDB Publication 996369 (RF exposure testing would continue to be required as it is for non-modular approvals, but would not be specifically noted in the new rules). However, the new rules would no longer permit the authorization of modular transmitters that are “split” into a “radio front end” (the radio elements) and a “transmitter control element” (the hardware on which the software that controls the radio operation resides), as the industry has rarely used this procedure and the new software-control rules will allow for the same intended flexibility
The FCC proposes to permit certification of a single chip transmitter that has been tested to demonstrate compliance in a typical installation provided that the grantee includes detailed instructions for integration into host devices to ensure that the ultimate configuration is consistent with the significant RF parameters for which it was tested.
The FCC proposes to permit the certification of a form factor that includes its own RF characteristics provided the grantee includes design guidelines, interface specifications, and “authentication requirements” that would guarantee that a module can operate on the form factor only with other modules whose collective RF emissions meet FCC requirements.
4. Software-controlled devices. The FCC will continue to generally follow the policies set forth in KDB Publications 178919 and 594280 for software defined radios (SDR). However, the new rules will also require a grantee of a software-controlled device to (a) explicitly describe the RF device’s capabilities for software configuration and upgradeability including all frequency bands, power levels, modulation types, or other modes of operation for which the device is designed to operate, including modes not enabled in the device as initially marketed; and (b) specify which parties will be authorized to make software changes (e.g., only the grantee, the wireless service provider, or other authorized parties) and the software controls that are provided to prevent unauthorized parties from enabling different modes of operation. This information would be included as part of the operational description information required in the application for certification.
5. Changes to certified equipment.The FCC proposes to do away with the “electrically identical” rule (for different device models, type numbers or trade names that are marketed under a common FCC ID) and replace it with a new standard that considers how a device differs from what was evaluated at the time of equipment certification and whether those differences could affect how the modified device complies with the rules. The new rules would continue to recognize two broad categories of changes very similar to the current rules: those that do not require a new FCC ID and those that do.
Changes not requiring a new FCC ID:
Class Ichanges would include changes in layout, operating software, or variations in overall electrical or mechanical construction that do not substantially change the overall function of the device and that do not degrade the device parameters normally reported in a certification application. These include changes that decrease the fundamental emissions that do not increase spurious emissions, an improved spurious emission performance, minor variations in the enclosure or components (including, for example, minor electrical component changes), and software changes that do not affect RF parameters. Class I changes would not allow RF exposure to increase or HAC ratings to change. No TCB of FCC notification would be required for Class I changes.
Class II changes would include changes that increase the fundamental emissions or degrade spurious emissions or other parameters reported to the FCC at the time of certification, as long as rules compliance is maintained and the overall layout, major frequency determining components and circuitry, or function of the device have not changed. Any modification to component layout would require the same device circuit design as that approved initially and the replaced components for RF determining functions would be required to have similar capabilities. Class II would allow new frequency bands or transmission formats to be added (“mostly through software changes”) and components to be depopulated (e.g., removing power amplifiers from the RF section) from a device. In addition, if the grantee of a certified modular transmitter wants to use the transmitter for applications for which it has not been approved (e.g., in cases of limited modular approval) the grantee would have to also obtain a new grant of certification under the same FCC ID by filing an application for change with data to show compliance with all the technical standards for that type of operation. Class II changes would require the filing of a certification application under the same FCC ID.
Changes requiring a new FCC ID: These include “significant changes” in the design, layout, or functionality of a previously certified device. In addition, a party requesting a new FCC ID for a previously certified device or that modifies and becomes the responsible party for a previously certified device must submit a new application for certification using a new FCC ID.
6. Responsible parties for certified equipment. Under current rules, when a party other than the grantee modifies a device through either hardware or software changes, without the authority of the grantee, that party becomes responsible for the modified device’s compliance and must obtain a new FCC ID for the modified product. When a party modifies a device under the authority of the grantee, the party must obtain a new certification under the original FCC ID with the original grantee’s approval. When certified modular transmitters are installed in host devices, the FCC’s rules for determining the responsible party for the end product have not been clear. The FCC proposes to clarify its rules for these type installations as follows:
Certified modular transmitters installed and no certification application required. Under existing FCC guidance, to ensure that the end product that incorporates a certified modular transmitter complies with FCC rules, the party installing the certified modular transmitter(s) into a host device must follow all instructions provided by the host manufacturer concerning the installation of the modular transmitter(s), the type and layout of the transmit antenna(s), and any other steps that must be taken to ensure the compliance of the end product. The party installing the certified modular transmitter must also ensure that the end product is of a type that has been tested for use under the modular transmitter’s certification. If the host device already contains transmitters which were not certified separately, or the party is installing multiple certified modular transmitters, then each transmitter must have been certified for use in such a combination and may only be installed in an approved configuration. If a certified modular transmitter is installed in compliance with all of the conditions tested and established as part of certified modular transmitter’s grant of certification, then a new certification would not be required for the resulting end product. The installer is responsible for ensuring that the host device complies with the FCC rules and was properly authorized prior to the installation of the modular transmitter.
Certified modular transmitters installed and new certification application required. When installing a certified modular transmitter(s) in a host, the installer is required to take steps to demonstrate end product compliance if the certified modular transmitter is: (a) installed in a manner that differs from any configuration associated with its certification; (b) the combination of certified modular transmitters would result in a configuration that is not consistent with any of the modular transmitters’ certifications; or (c) host device-specific tests are required for compliance. Typically, the demonstration of compliance requires the installer to test the end product (which may include RF exposure and HAC testing) and seek a new grant of certification (see KDB 996369). The FCC is proposing that a new grant of certification be obtained in one of two ways: the installer can apply for a grant of certification for the complete end product (i.e., the host device and the certified transmitter(s)); or the grantee(s) of the certified modular transmitter(s) can modify the original grant(s) of certification to allow for such an integration into a host device under the original FCC ID(s).
Under the first scenario, the party installing a previously certified modular transmitter into an end product would submit an application for certification and obtain a new FCC ID for the end product. If the party has obtained the consent of the original certified modular transmitter grantee(s), its application could reference the test data associated with the modular transmitter(s)’ current certification, supplemented by data obtained from any additional tests necessary to demonstrate compliance of the end product. The grantee of certification for any installed certified modular transmitter(s) would continue to be responsible for compliance of its certified modular transmitter(s); however, the end product manufacturer would be responsible for compliance of the additional capabilities of the certified modular transmitter(s) approved under the new FCC ID and for the end product.
Under the second scenario, the original grantee of the certified modular transmitter would submit a new certification application and include any supplemental data necessary to demonstrate that the certified modular transmitter would comply with the rules when appropriately installed in the specific host device, or that certain combinations of modular transmitters will comply with the rules when installed in the specific host device. Depending on the nature and scope of the modifications, the original grantee would either retain the existing FCC ID for the certified modular transmitter and submit a new certification application, or submit a new certification application and receive a new FCC ID. Note that in this case, the party installing the modular transmitter could then effectively proceed to sell the end product under the “no certification application required” scenario. For installations performed by consumers, the FCC further proposes to designate the certified modular transmitter grantee or the host provider as responsible for the end products that can be created by consumers who purchase such equipment.
7. Modifications of certified equipment by third parties. The FCC proposes a new rule that requires a new grant of certification for any device modification, including Class II changes, by a third party. The new grant could use the same FCC ID with the consent of the original grantee or if consent is not obtained, a new FCC ID would be required.
The FCC also proposes to permit third-party RF-controlling software modifications to previously certified devices under the same procedures that currently apply to grantee modifications of SDRs. When a software change allows operations outside of the RF parameters approved in the device’s grant of certification, the party making the software changes must obtain a new grant of certification. The new grant may use the same FCC ID with the consent of the original grantee (as a Class II permissive change) or must have a new FCC ID if such consent is not obtained.
8. Repaired and refurbished devices. Current rules provide that a third party that repairs or refurbishes certified equipment to the device’s original specification does not need to submit an application for certification if the equipment continues to operate as specified in its current grant. In this case, the FCC ID remains on the device and the original grantee continues to be the responsible party. When a party repairs or refurbishes certified equipment but does not return the equipment to its original specification, this is treated as a modification to a certified device. If the grantee or a third party with the consent of the grantee makes the change, the Section 2.1043 permissive change rules would apply. Thus, if a new grant of certification were required, it could be obtained under the same FCC ID as a Class II permissive change or a new FCC ID, depending on the scope of the change. If a third party modifies the device without the consent of the grantee, it would become the new party responsible for the compliance of the equipment and a new FCC ID would be required. If a third party repairs or refurbishes certified equipment to the device’s original specification without the grantee’s permission, FCC is proposing that an application for certification be required or that the third party take some action that would allow the FCC to readily identify the third party and be assured that the repair does not serve to impermissibly modify the device.
9. Imported devices. The FCC is proposing to require that all certification applications include contact information of a party located in the United States who would be responsible for compliance. Further, the FCC proposes to enforce its importation rules against both the seller and the buyer.
10. Information included with certification applications. The FCC proposes to re-organize and simplify its certification information requirements and to require the submission of device’s operational description to include information about software used to control RF parameters and security to ensure unauthorized modification.
11. Confidentiality of certification applications. The FCC proposes to grant “short-term” confidentiality upon an applicant’s request for 45 days, which may be extended with serial requests to a maximum of 180 days. Such short-term confidentially period will end immediately if the device is marketed to the public or otherwise publicized by the applicant or by an entity acting on the applicant’s behalf prior to the expiration of this period. The FCC also proposes to provide “long-term” confidentiality automatically (i.e., without specific justification) for certain application exhibits for all equipment authorizations, to wit: schematics, block diagrams, operational descriptions, and parts list / tune-up information.
12. Time frame for requesting review of certification grants. The FCC believes that the date that the grant is published on the FCC website is the appropriate public notice date as it is the date that the grant of the certification becomes known to the public and is the effective date of the certification grant. While this release date should be the date that will appear on any electronic or hard copies of the grant, the FCC is proposing to specify the date of publication on the FCC website to avoid any confusion should a mistake or other circumstance occur in which the dates do not match. To facilitate grant review requests, the FCC has asked whether an applicant requesting short-term confidentiality should provide a summary or a redacted version of the exhibits for which they are requesting short-term confidential treatment for placement on the FCC website at the time of the grant. Alternatively, the FCC has asked whether it should instead issue a “provisional” certification grant for a device which otherwise is deemed to meet all the certification requirements to allow for legal importation and distribution through the supply chain of devices prior to sale.
13. E-Labeling. The FCC is proposing a new rule to generally allow a radiofrequency device with an integrated electronic display to electronically display any labels required by the rules. This will include the FCC ID required for certification as well as any warning statements or other information that the rules require to be placed on a physical label on the device. The rule will also require that this electronic labeling information is secured in order to prevent modification by a third party. The rule will require that the user be provided with prominent instructions on how to access the required labeling and regulatory information, in either the packaging material or another easily accessible format, at the time of purchase, and that these instructions be available on the product-related website, if one exists. The FCC also proposes that accessing the labeling and regulatory information not require any special codes or permissions and should require no more than three steps; and when the labeling information is electronically displayed, it must be clearly legible without the aid of magnification. When devices are imported, the FCC is proposing that devices displaying labeling and regulatory information electronically must also place this information either on the product packaging or on a physical label placed on the device at the time of importation, marketing, and sales. If a physical label is used, it may be a removable label, or, for devices in protective packaging, a label on the protective packaging. The FCC believes these alternatives may be useful when placing the information on the product packaging is not feasible, such as when devices are not individually packaged.
The proposed rules would not change the requirements to place warning statements or other information on device packaging or in user manuals or make information available at the point of sale. FCC rules would not allow other forms of electronic labeling such as Radio Frequency Identification (RFID) tags or Quick Response (QR) codes to substitute for the on-screen information display, or otherwise permit displays that require the use of special accessories, supplemental software, or similar plug-ins. The FCC is not proposing to require parties to display any information that is not already required by the rules as part of an electronic label, nor is it proposing to eliminate the ability of manufacturers to continue to physically label devices if they wish to do so. The FCC proposes to continue to require that devices that rely on a wireless or remote connection and have no display to use a physical label.
14. Measurement procedures. The FCC is proposing to modify Section 2.947(a)(3) to specifically include a reference to the advisory information available in the Commission’s online KDB Publications. It also proposes to revise various Part 15 and Part 18 rules to reference procedures that will be published as KDB Publications to support the measurement procedures and to provide clarifying text.
The FCC notes that ANSI C63.26, when complete, will provide detailed measurement procedures to assist manufacturers and test laboratories to perform consistent and reliable measurements needed to demonstrate compliance with the Commission’s technical requirements for licensed radio transmitters. References to the applicable measurement procedures in ANSI C63.26 could potentially replace measurement procedures in Part 2 for RF power output, modulation characteristics, occupied bandwidth, spurious emissions at antenna terminals, field strength of spurious radiation, frequency stability, and frequency spectrum. Similarly, references to Part 2 (and, by extension, ANSI C63.26) could replace the specific measurement procedures and details that are presently contained in many of the individual service rules. The FCC is asking for comment on whether changes are needed to the measurement procedures in Part 2 to clarify these procedures, such as a modification to Section 2.1053 to provide for the direct measurement method of radiated emissions or as an alternative the use of the substitution test method. The FCC notes that many products today incorporate both licensed and unlicensed transmitters and there may be value in providing for the same test method to be used for a device that is subject to technical requirements in different rule parts. To facilitate this process, the FCC is asking for comment on incorporating ANSI C63.26 into the rules as soon as the standard becomes final.
The FCC seeks comment on whether the measurement procedures specified in Section 15.31(a)(3) and (4) (referencing ANSI C63.4-2014 and ANSI C63.10-2013) are sufficient to address compliance testing for devices subject to the Part 15 rules such that the specific measurement procedures in Sections 15.31-15.35 can be revised to remove any redundancy. For example, the FCC proposes to replace the text in Section 15.33(a) regarding the frequency range of measurements for intentional radiator with a reference to ANSI C63.10-2013 clause 5.5, which provides the same procedure as in the rules. Further, the FCC proposes to modify Section 15.35 to clarify the measurement detector functions and bandwidth requirements and to replace an old reference to CISPR Publication 16 in Section 15.35 with an updated reference to the measurement instrumentation procedures in ANSI C63.4-2014; and to eliminate the note associated with Section 15.35(a) and instead rely on the emission measuring instrumentation specifications in ANSI C63.4-2014.
15. Importation rules. The FCC is proposing to eliminate Section 2.1205 and delete Section 2.1203(b) to remove the Form 740 filing requirements. Importers would no longer have to file information with the FCC specifying the import condition upon which they are relying. Other proposals are as follows:
Bonded warehouses. The FCC raised the possibility of providing provisional grants of certification to allow the importation of RF devices prior to the final issuance of the certification. If so, the FCC has asked for comment on whether issuing provisional grants of certification would reduce or eliminate the need for using bonded warehouses.
Increasing number of trade show devices. The FCC is proposing to modify Section 2.1204(a)(4) to increase the number of devices that can be imported for demonstration purposes at a trade show from 200 to 400 for devices used in licensed services; and from 10 to 400 for all other products.
Devices imported for personal use. The current importation rule permits a personal use exception of 3 unlicensed (Part 15) devices. The FCC is proposing to adopt a blanket personal use exception rule for licensed and unlicensed devices and asks for comment on what that number should be.
16. Transition period for new rules. The FCC proposes that all rule changes adopted in this proceeding become effective immediately upon their publication in the Federal Register; however, it will permit manufacturers to continue to self-approve products using the existing DoC or verification procedures for up to one year from the effective date of the rules if they so choose.
 Amendment of Parts 0, 1, 2, 15 and 18 of the Commission’s Rules regarding Authorization of Radiofrequency Equipment and Request for the Allowance of Optional Electronic Labeling for Wireless Devices, ET Docket No. 15-170, RM-11673, Notice of Proposed Rulemaking (released July 21, 2015).
The opinions expressed are those of the authors on the date noted above and do not necessarily reflect the views of Fish & Richardson P.C., any other of its lawyers, its clients, or any of its or their respective affiliates. This post is for general information purposes only and is not intended to be and should not be taken as legal advice. No attorney-client relationship is formed.