Blog August 10, 2015
Regulatory Alert: New FCC Rules Require Part 5 Experimental Licenses
New FCC Rules Require Part 5 Experimental Licenses for: (1) Compliance Testing by FCC-Listed Labs; and (2) Manufacturer Operations of Non-Compliant RF Devices During Design, Development and Prototype Demos.
In 2013, the FCC adopted a Report and Order, with an important Erratum, that widely revamped the Part 5 Experimental Radio Service (ERS). The new rules are designed to modernize the ERS rules and to clarify FCC policies on marketing and operating pre-compliant devices. Significantly, test labs should be aware of new rules that require them to obtain an ERS license to perform routine compliance testing. In addition, manufacturers need to be aware of rules that require them to obtain an ERS license to operate any non-compliant device during the design and development stages or for demonstrations.
The old Part 2 Rules (47 C.F.R. 2.803(e)(1)(i)) allowed any pre-compliant RF device to be operated without a test or experimental license (or special temporary authorization — STA) for “compliance testing.” As long as the test lab or manufacturer reasonably believed that a device was designed and expected to comply with FCC rules, it could be operated for compliance testing purposes without a license or STA. No more.
New Rule 5.54(e) requires a Part 5 ERS license for laboratories that test RF devices indoors or on an Open Area Test Site. The only compliance testing that will be permitted without an ERS license must be conducted in an anechoic chamber or a Faraday cage.
Manufacturer R&D Testing
The old Part 2 Rules (47 C.F.R. 2.803(e) and (f)) conditionally allowed a manufacturer or distributor to operate a pre-compliant device for trade show demonstrations, or at the manufacturer’s facilities or end user’s business location. As long as the operator reasonably believed the device was designed to comply with FCC rules and would comply upon testing, no license or STA was required. No more. Rule 2.805 requires a Part 5 ERS license unless the device is operated - regardless of the purpose — “in compliance with existing Commission rules.” Here again, an exception to the license requirement is for a device fully contained in an anechoic chamber or a Faraday cage.
Rule 2.805 begs the obvious question: if preliminary testing of an RF device without a Part 5 ERS license during design or development finds that it is not “in compliance with existing Commission rules,” has the operator already committed a rule violation? And if so, does that mean a Part 5 license is required in advance of any compliance testing simply to avoid an inadvertent rule violation? The FCC’s Experimental Licensing Branch (ELB) was recently asked to address this issue and their response seems to suggest that device designers/developers get “one free test” as long as it is for compliance testing purposes; then, according to the ELB, “if the device is found not to comply, the device will need an STA or Part 5 license.”
For questions or more information, please contact:
Terry G. Mahn
Managing Principal Washington, DC
Principal Washington, DC
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.
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