Communications
FCC Equipment Authorization Regulation
The equipment authorization regulatory framework of the Federal Communications Commission (FCC or
Commission) applies to a broad range of equipment. Under the FCC’s regulations, all equipment – not just
equipment used for communications purposes – that emits radio frequency energy, whether intentionally or
unintentionally, and whether by radiation, conduction, or some other means (collectively, Radiofrequency Devices),
is potentially subject to these regulations. If applicable, these regulations must be satisfied before the equipment can
be imported into or sold, leased, or otherwise marketed within the United States. What is surprising to some is that
this regulation applies not only to transmitting equipment, such as cell phones, cordless phones, wireless modems,
baby monitors, and garage door openers, to name a few examples. But it also applies to a variety of other equipment
that do not transmit signals for purposes of communications, such as receivers, televisions, cable television interface
devices, computers and computer peripherals without wireless modems, servers, routers, and certain appliances,
among others.
Kelley Drye is experienced in helping manufacturers, importers, retailers, and others navigate the regulatory waters
related to Radiofrequency Devices. Below, we answer some of the most common questions concerning the scope and
applicability of the FCC’s equipment authorization regulations. In addition, we explain in more detail the ways in
which Kelley Drye can help firms subject to the Radiofrequency Device regulations stay on course.
Q. What equipment is potentially subject to regulation and by whom?
A. The Commission is charged with managing the use of the radiofrequency spectrum in the United States. The FCC does
this in several ways. In addition to determining what frequencies are available for what purposes (in conjunction with the
National Telecommunications and Information Administration, which manages spectrum use by Federal government entities),
the FCC issues licenses for the use of the radiofrequency spectrum and permits the use of certain equipment on an unlicensed
basis, so-called “unlicensed devices.” The purpose of this regulatory framework is to minimize the potential for interference
between users of the radio frequency spectrum, particularly interference to users holding FCC licenses. As a major component
of the Commission’s efforts, the FCC generally requires any Radiofrequency Device – meaning any device that is capable of
emitting radio frequency energy by radiation, induction, conduction, or by other means – to meet certain technical and other
requirements before it may be marketed or used in the United States. It does not matter whether the emission by the device is for
communications purposes, how it occurs, or whether the emission is intentional or unintentional. In each of these situations, the
equipment is potentially subject to the FCC’s equipment authorization regulations. In addition, when such equipment is brought
into the United States, certain requirements must first be satisfied before the equipment can clear Customs.
Q. How do the FCC regulations define “marketing”?
A. “Marketing” of Radiofrequency Devices is defined broadly. It includes both wholesale and retail sales and leases
of Radiofrequency Devices and all offers for sale and lease of such equipment. In addition, importation, shipment, and
distribution of Radiofrequency Devices into and within the United States for purposes of sale or lease (or offering for sale or
lease) also fall within the scope of “marketing.”
Q. What is the nature of the FCC’s regulations that must be satisfied before
Radiofrequency Devices may be marketed or operated?
A. Depending upon the way in which the Radiofrequency Device will be used, certain technical and other regulatory
requirements apply. For example, to determine which requirements apply to a particular type of Radiofrequency Device, it
is important to know whether the equipment will be utilized in conjunction with an FCC-licensed service or will be used
on an unlicensed basis. Each licensed service has specific technical and operational requirements adopted by the FCC to
which the equipment used in that service must adhere, including frequencies of operation, power limits, and other technical
parameters. Generally, transmitting equipment used in licensed services must be adequately tested by either an accredited
Telecommunications Certification Body (TCB) or the Commission and receive a grant of equipment authorization, i.e.,
certification (a single process which includes the former procedures of certification, type acceptance, or type approval), before
it may be marketed or operated. Such equipment must also adhere to certain labeling and user-information requirements.
Transmitting equipment may also be subject to regulations designed to limit human exposure to radiofrequency energy.
Unlicensed devices, too, are subject to one of several sets of procedures that must be satisfied before marketing or operation
commences depending specifically on their nature of their use and operating characteristics. Some unlicensed devices are
subject to an advance grant of certification before they may be marketed, i.e., undergo the same process that generally applies
to transmitting Radiofrequency Devices that will be used in licensed services. Other unlicensed devices are subject to one
of two other procedures (i.e., Declaration of Conformity (DoC) or verification) which, when applicable, must be undertaken
before marketing but which do not specifically require a grant. These processes are used to ascertain whether the equipment
stays within applicable technical limits established by the Commission. Like Radiofrequency Devices that will be used
with licensed services, unlicensed devices must also adhere to certain labeling and information rules. In certain instances,
unlicensed devices may be subject to regulations intended to limit human exposure to radiofrequency energy.
Q. What regulations apply if changes are made to equipment that has been already
been certified or otherwise authorized?
A. As a general rule, once a Radiofrequency Device is certified or undergoes the DoC or verification procedure, whichever
is applicable, all devices that are identical to that Radiofrequency Device may be marketed and operated without further
action connected to the equipment authorization regulatory framework. However, if changes are made to an Radiofrequency
Devices following the completion of the certification, verification, or DoC process, depending upon the nature of the
modification to the equipment, the rules may require a new certification or that the product undergo the DoC or verification
procedure again before the modified equipment may be marketed. In other situations, the modification may simply require a
notice to the Commission or even no action at all.
Q. Who is responsible for ensuring that equipment is certified or undergoes a DoC or
verification?
A. The Commission’s rules generally provide that, as a regulatory matter, either the manufacturer or the importer (if
the Radiofrequency Device is imported) is the party responsible for compliance with the FCC’s equipment authorization
regulations. However, the marketing restrictions apply to all persons, including, for example, a distributor or retailer that
is neither the manufacturer nor the importer. (Further, the restriction on using a Radiofrequency Device that has not first
undergone the requisite procedure applies to all persons.) In some cases, other persons may be responsible for compliance with
the certification, DoC, or verification rules, for example, when someone other than the manufacturer modifies the equipment
subsequent to manufacture or when the equipment is assembled from individual component parts. Determining who is the
responsible party in a given situation often requires a close review of the facts and circumstances. (Note that, for products
manufactured overseas and subsequently imported into the United States by another party, the manufacturer may enter into
contractual relationships governing whether it, the importer, or another intermediary will undertake the effort of satisfying the
equipment authorization requirements prior to import.)
Q. Are there exceptions to the FCC’s marketing regulations?
A. Yes. There are a number of limited exceptions to the requirements that Radiofrequency Devices must be certified or must
undergo the DoC or verification procedure before being marketed or operated. For example, unintentional radiators that are
marketed for use exclusively in motor vehicles need not complete any of the foregoing procedures nor comply with any specific
technical requirements. However, they are subject to the basic conditions of operation that apply to all unlicensed devices,
namely, that they not cause harmful interference to licensed operations and that they must accept interference from any source.
In addition, certain equipment can be imported for purposes of testing and evaluation, subject to certain conditions, without
first having obtained a certification or undergone the DoC or verification procedure. There are other exceptions. In addition,
it may be possible to obtain waivers from the FCC of certain technical and operational rules or to persuade the FCC to amend
the rules themselves to allow certain Radiofrequency Devices to be marketed and used that would otherwise be prohibited
under current rules.
Q. What are the consequences of non-compliance with the regulations applicable to
Radiofrequency Devices?
A. If Radiofrequency Devices are imported or otherwise marketed without first obtaining a grant of certification or
undergoing the DoC or verification procedure, whichever is applicable, the responsible party is subject to potentially
substantial penalties and forfeitures, including potential seizure of equipment and possible criminal penalties in certain
instances. Penalties and forfeitures also apply if the equipment is not properly labeled or the information to the user is
not presented as required by the FCC’s regulations. The Commission’s rules allow penalties and forfeitures to apply
for each device that is imported or otherwise marketed. Recent investigations into compliance with the equipment
authorization rules have resulted in payments to the FCC of as much as $450,000. Not all payments made as part
of consent decrees or as a result of enforcement action are as high, and the Commission will consider the number of
devices that have been marketed or imported (and the numbers of models), the period of time over which improper
marketing or importation (or other violation) has occurred, the degree of cooperation with the FCC Enforcement
Bureau, any past violations, and other factors, when determining a penalty or forfeiture or when negotiating a consent
decree. In addition, the Commission may require a firm that violates its
rules to develop and follow a compliance program for a period of two or
more years with periodic reporting requirements.
Chip Yorkgitis
Partner
cyorkgitis@kelleydrye.com
(202) 342-8540
Kelley Drye attorneys are experienced in advising a broad range of clients
on compliance with the FCC’s equipment authorization requirements.
This includes:
 ascertaining what equipment authorization procedure, or
exception, applies to a Radiofrequency Device
 assisting with determining how any tests for compliance must be
conducted, in cooperation with the Commission, TCB, or other
testing house
 advising regarding recordkeeping associated with equipment
authorization
 assisting with proper equipment labeling of Radiofrequency
Devices and any information that must be provided to users
 counseling whether a modification to equipment already
authorized creates additional compliance obligations
 advising clients on the extent of marketing or marketing-related
activities that are permitted under the Commission’s rules prior
to completion of the equipment authorization process
 assisting with issues that arise in connection with the
importation of Radiofrequency Devices
 obtaining interpretations of the Commission’s rules, seeking
waivers of the rules, and seeking amendments to rules in order
to expand the commercial opportunities for clients’ equipment
while ensuring regulatory compliance
Further, Kelley Drye has considerable expertise in advising clients with respect
to ongoing or prospective Commission investigations regarding compliance
with FCC regulations. This experience extends to assessing whether certain
activities constitute violations and must be reported if they occur, responding
to Commission inquiries and investigations, negotiating consent decrees,
defending against notices of apparent liability issued by the Commission, and
developing and assisting with reports associated with compliance plans.
If your company or organization has any questions regarding any aspect of the
Commission’s equipment authorization requirements or is facing a potential or
an already-initiated FCC inquiry or investigation, we would be happy to discuss
with you how we can help.
Joshua T. Guyan
Partner
jguyan@kelleydrye.com
(202) 342-8566