FCCEquipAuth - Kelley Drye

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FCC Equipment Authorization Rules
What Manufacturers, Retailers, and Others
in the Chain Need to Know
Chip Yorkgitis
Joshua Guyan
Dawn Damschen
April 2, 2015
Agenda
 Commission’s Jurisdiction and Scope of Authority
 Overview of Equipment Authorization Regime and Recent
Developments
 Representative Recent Enforcement Activity
 What to Look For in 2015 and Beyond
2
Source of Commission Authority
 Section 302a of the Communications Act of 1934, as amended
 FCC has the authority to adopt regulations that govern “the
interference potential of devices which in their operation are capable
of emitting radio frequency energy by radiation, conduction, or other
means in sufficient degree to cause harmful interference to radio
communications” and that establish “minimum performance
standards for home electronic equipment and systems to reduce
their susceptibility to interference from radio frequency energy.”
Section 302a(a).
 “No person shall manufacture, import, sell, offer for sale, or ship
devices or home electronic equipment and systems, or use devices,
which fail to comply with regulations promulgated pursuant to this
section.” Section 302a(b)
3
Source of Commission Authority (cont’d)
 Statutory exceptions to FCC Authority under Section 302a
 “carriers transporting such devices or home electronic equipment
and systems without trading in them”
 “devices or home electronic equipment and systems
manufactured solely for export”
 “the manufacture, assembly, or installation of devices or home
electronic equipment and systems” by a “public utility engaged in
providing electric service,” for its own use.
 “devices or home electronic equipment and systems for use by
the Government of the United States or any agency thereof.”
4
FCC Offices Involved
 Federal Communications Commission
 Office of Engineering and Technology (OET)
 FCC Laboratory
 Telecommunications Certification Bodies (TCB)
 Enforcement Bureau
5
FCC Regulatory Framework

Rules prohibit marketing and use of RF devices prior to demonstrations of
compliance with the FCC Rules

General equipment authorization rules are under Part 2 of FCC Rules

Specific technical standards are found under other rule parts
 Part 15 -- Unlicensed Devices (includes many consumer devices such
as televisions, computers, cordless phones, )
 Part 18 -- Industrial, Scientific, and Medical equipment (e.g., RF light
bulbs, industrial microwaves)
 Licensed Services (e.g., Parts 20 and 24 commercial mobile radio
services, part 90 private radio services, Part 101 fixed microwave
services)
 Applicable devices must also be tested for compliance with Specific
Absorption Rate levels under Part 2
6
Scope of Equipment Authorization
Obligations

Generally all radiofrequency devices are affected: “any device which in its
operation is capable of emitting radiofrequency energy by radiation,
conduction, or other means” 47 CFR 2.801

Exemptions exist, for example (although certain other rules still apply):
 Incidental Radiators
 Power Line Carrier Systems
 Most receivers operating outside the frequency range of 30-960 MHz
 Certain unintentional radiators, e.g. digital devices
 utilized exclusively in transportation vehicles.
 utilized exclusively in appliances
 With a power consumption not exceeding 6 nW, or in which both the highest frequency
generated and used are <1.705 MHz and which do not and cannot operate from the AC
power lines
 Home built devices in limited quantities
7
Marketing Restriction (Section 2.803)
 No one may market an RF device until the device has been
authorized, if required, and it is properly identified and labeled.
 Marketing is defined broadly:
 selling
 leasing
 offering to sell or lease (including advertising for sale or lease) a
device; and
 importing, shipping, or distributing a device for the purpose of
selling or leasing or offering to sell or lease the device.
 Compliance Note: Entities in addition to those who are
responsible for obtaining equipment authorization are subject
to this prohibition, e.g., retailers.
8
Enforcement Alert!
 Enforcement Against Retailers Does Occur
 Wal-Mart USA and Wal-Mart Stores (March 31, 2014) - Company
agreed to a Consent Decree with $120,000 “Voluntary Contribution”
and 3-year compliance plan
 Marketed on its website at least one wireless microphone
that had not been authorized
 Failed to include a required Consumer Alert on its website
regarding operation of wireless microphones without a
license
9
Marketing Restriction: Exceptions
 Marketing activities approved under product development and
market trials (Part 5 of the FCC rules)
 Marketing prior to authorization is permitted in limited circumstances
provided the device could be authorized
 Certain sales contracts where delivery is contingent on compliance with
applicable FCC rules
 Agreements to produce new products, manufactured in accordance with
applicable rules.
 Offering devices for sale solely to business, commercial, industrial,
scientific or medical users (only) in the conceptual, developmental,
design, or pre-production stage, if prospective buyer is advised in
writing of conditions prior to delivery
 Certain evaluation kits sold solely to product or software developers
or to systems integrators
10
Advertising
 Marketing rule allows advertising or display at trade shows or
exhibitions prior to authorization when accompanied by this
conspicuous notice:
This device has not been authorized as required by the rules of the Federal
Communications Commission. This device is not, and may not be, offered for
sale or lease, or sold or leased, until authorization is obtained.
 Variation for qualified prototypes of authorized devices:
Prototype. Not for sale

Compliance Note: Where a device has been authorized under the FCC
Rules, the rules preclude conveying an impression in marketing materials
that the authorization reflects anything more than that an FCC-authorized
determination has been made that the device has been "shown to be
capable of compliance" with applicable FCC technical standards –
Equipment authorization is not a seal of approval
11
Importation Restrictions
 Most imported RF devices must be accompanied by a declaration
(FCC Form 740) to Customs and Border Protection that the devices
satisfy one of ten specific conditions of entry, for example
 FCC equipment authorization in hand
 No authorization required - device complies with FCC technical
administrative rules
 Testing and evaluation (quantities of 4,000 or fewer units) but no marketing;
for purposes of FCC compliance, product development, or suitability for
marketing
 “Limited quantities” for demonstration at industry trade shows; no marketing
 Solely for export or repair; no marketing in U.S.
 Exclusive use of U.S. Government
 Personal use only (three or fewer units)
12
Importation Declaration Exclusions

Unintentional radiators which utilize low level battery power and which do
not contain provisions for operation while connected to AC power lines (e.g.,
cameras, musical greeting cards, quartz watches and clocks, modules of
quartz watches and clocks, hand-held calculators and electronic games).

Unintentional radiators which are exempted from technical standards and
other requirements as specified in §15.103 of FCC rules.

Devices manufactured and assembled in the U.S. that meet applicable FCC
technical standards and which have not been modified or received further
assembly before import.

Devices previously properly imported that have been exported for repair and
re-imported for use.

Subassemblies, parts, or components of radio frequency devices unless
they constitute an essentially completed device
13
Operating Restriction (Section 2.805)
 General Rule: An RF device may not be operated prior to
equipment authorization.
 Limited enumerated exceptions:
 Under a grant of Part 5 experimental authority
 Experimentation or compliance testing of a device that is fully
contained within an anechoic chamber or a Faraday cage
 Operation under authority of a service license, provided the
licensee grants permission and remains responsible for
operational compliance (to service rules); devices must be
rendered inoperable or retrieved at conclusion of operation
 Operations pursuant to special temporary authorization; devices
must be either rendered inoperable or retrieved at conclusion
14
Operating Restriction Exceptions (cont’d)
 Devices that will operate without a station license solely under Part 15,
Part 18, or Part 95 (Personal Radio Services)
 demonstration at a trade show or exhibition with proper, conspicuous,
nearby, and written notice that the equipment is subject to FCC rules,
will comply with applicable rules before delivery, and will be rendered
inoperable or retrieved at conclusion of operation
 evaluation of performance and determination of customer acceptability,
during developmental, design, or pre-production states; proper labeling
is required; devices must be rendered inoperable or retrieved
 Operation at or below the generally applicable maximum unlicensed
device radiated emission limit (47 CFR §15.209(a)), is permitted (i) at
trade shows or exhibition, or (ii) for evaluation of performance and
determination of customer acceptability, during the development, design
or pre-production states, with proper notice as set forth in rules and
provided the device will be rendered inoperable or retrieved at
conclusion of operation
15
Equipment Authorization Categories

Demonstration of compliance with applicable technical and other rules prior
to marketing and operation, including, where applicable, SAR (measure of
the rate of energy absorption by human tissue due to exposure to RF
transmitting sources)

Applicable procedures and rules depend on equipment type
 Verification
 Declaration of Conformity (DOC)
 Certification

Equipment may be subject to more than one procedure.

Generally equipment manufacturers or importers are the parties responsible
for satisfying compliance measures, including labeling, informational, and
administrative requirements.

Users are responsible for using equipment that is authorized
16
Verification (a “procedure”)
 Manufacturer or, in the case of imported equipment, the importer,
before marketing commences, makes measurements as necessary
to insure that the equipment complies with the appropriate technical
standards.
 Submittal of a sample unit or representative data to the Commission
demonstrating compliance is not required unless specifically requested
by the Commission (after the fact)
 Certain records must be retained for two years after manufacture
permanently ceases
 Applies to most unintentional radiators under Part 15 of Rules;
examples include FM/TV receivers, business computers, non-PC
Class B digital devices and peripherals marketed for use in
residential settings
17
Declaration of Conformity (“DOC”) (a “procedure”)

The Declaration of Conformity procedure requires the responsible party (located
within the United States) , before marketing commences, to make measurements or
take other necessary steps to ensure that the equipment complies with the
appropriate technical standards.
 Responsible party typically the manufacturer or importer but can also, in some
cases, be the assembler, retailer, or any party modifying the equipment
 Testing must be by an Accredited Test Laboratory

Submittal of sample units or representative data to the Commission demonstrating
compliance is not required unless specifically requested (after the fact)

Certain records must be retained for two years after the manufacture or assembly is
permanently discontinued

Applies to certain Part 15 unintentional radiator devices; examples include certain
classes of receivers and Class B personal computers and peripherals, consumer
microwave ovens and RF light bulbs, and TV interface devices
18
Certification (“equipment authorization”)

Certification is an equipment authorization issued by the FCC (for now) or a
Telecommunications Certification Body (TCB) authorized under FCC authority,
based on representations and test data submitted by the applicant for
certification.

Form 731, a filing fee, and all information specified by the FCC rules (including, as
applicable, a statement confirming compliance with SAR limits or an Environmental
Assessment), submitted in the manner prescribed by the TCB, electronically.

Confidential treatment available

The Grantee is responsible for compliance with RF radiation exposure limits and
other FCC requirements.

A list of approved TCBs is available on the FCC's website

All granted certifications found on the FCC’s website.

Compliance Note: Don’t market equipment subject to certification relying
on the testing report alone
19
Increasing Role of TCBs in Certification
 December 2014 Equipment Authorization Order effective 30 days
after publication in Federal Register
 TCBs handle 98% of Certifications already, but will issue all grants
of equipment Certification as of the effective date of the Order
 Pre-approval guidance procedures replace “exclusion list”
 Designated by national designating authority like NIST
 Ongoing compliance obligations and workshop trainings
 FCC or TCB can set aside grants issued within the last 30 days;
after that FCC can revoke certification
 Still cannot grant waivers of the FCC’s rules
 Post-market surveillance required – 5% sample
20
Test Laboratories
 All labs that perform certification or DOC testing must be accredited
under ISO/IEC 17025;
 No more 2.948-listed facilities for Part 15 and 18 equipment
 One year grace period for 2.948-listed facilities to become
accredited and can still get Certification from such entities if
application submitted within 15 months of the effective date of the
Equipment Authorization Order
21
Changes to Authorized Equipment

Generally, verification, DOC, certification attaches to all items subsequently marketed
by the responsible party which are identical to the sample tested and found
acceptable
 identical means identical within the variation that can be expected to arise as a
result of quantity production techniques

A new equipment authorization is required whenever there is a change in the design,
circuitry or construction, except for permissive changes
 in certificated equipment
 equipment that was authorized under the former type acceptance procedure,
pursuant to §2.1043
 equipment that was authorized under the former notification procedure.

Compliance Note: Responsible personnel should be made aware of the scope
and procedures of changes to equipment, whether subject to verification, DOC,
or certification.
22
Permissive Changes to Certificated
Equipment

There are classes of permissive changes for certificated equipment without
need to file a new application or obtain a grant of certification:

Class I: Made by grantee; changes do not degrade the performance
characteristics of the equipment as certified; no filing required.

Class II: Made by grantee; changes degrade the performance
characteristics of the equipment as certified; grantee must provide TCB
complete information and the results of tests of the characteristics affected
by the change; marketing of the modified equipment permitted after TCB
acknowledgement

Class III: Certain modifications to the software of a software defined radio
transmitter that change parameters outside the parameters previously
approved or that change the circumstances under which the transmitter
operates in accordance with FCC rules; marketing of the equipment with the
modified software permitted after TCB acknowledgement
.
23
Labeling and Information to User
 FCC Rules specify that RF devices are labeled and are marketed
with other required statements depending upon which type of
equipment authorization or procedure is involved and under which
rule Part the equipment will operate.
 Product identification
 Compliance statement
 Information to user
 Label shall be etched, engraved, stamped, indelibly printed, or
permanently affixed to a permanently attached part of the equipment
 For equipment subject to a grant of equipment authorization, i.e.,
certification, the label must be visible at the time of purchase on the
exterior of the equipment enclosure.
24
E-LABEL Act
 The E-LABEL Act
 Applies to FCC only.
 Signed into law on November 26, 2014
“Not later than 9 months after the date of enactment of the [ELABEL Act], the Commission shall promulgate regulations or take
other appropriate action, as necessary to allow manufacturers of
radiofrequency devices with display the option to use electronic
labeling for the equipment in place of affixing physical labels to the
equipment.” (Section 3)
 FCC promulgation of regulations or other action must occur by
August 26, 2015.
25
Existing FCC Permission for E-Labeling

FCC E-Labeling Rules
 Devices approved as software-defined radios or host devices (with
integral display) containing modular transmitters are permitted to
display label information electronically.

OET Electronic Labeling Guidance (July 2014)
 Devices with integral displays may display FCC ID and/or
Declaration of Conformity logo, along with any other required
information
 Users must be able to access information:
1) without special access code or accessories/plug-ins
2) in no more than 3 steps in the device’s menu
 User must receive specific instructions for accessing information
 Label information must still be visible at the time of purchase
26
Labeling Considerations: Verification
 Unique product identification, not to be confused with an FCC ID for
certified equipment (e.g., trade name, model number), must be on
the device.
 Applicable compliance statement on the device, unless not
practicable (alternative locations include instruction manual).
 Most devices subject to verification require this notice:
This device complies with part 15 of the FCC Rules. Operation is
subject to the following two conditions: (1) This device may not cause
harmful interference, and (2) this device must accept any interference
received, including interference that may cause undesired operation.
 Exception: Receivers associated with the operation of a licensed
radio service.
 Exception: Stand-alone cable input selector switch.
27
Labeling Considerations: DOC (Part 15)

The FCC logo along with the trade name and model number must be on
device, except when e-labeling is permissible and selected.

Condition of operation statement similar to verification (general case) unless
not practical due to size.
 PCs assembled from authorized components, must have additional text
(“Assembled from tested components” and “Complete system not
tested”).
28
Labeling Consideration: Certified Equipment
 FCC ID (FCC-issued grantee code plus grantee-chosen equipment
product code) for certified equipment.
FCC ID XXX-XXXXXXXXXXXXX (14 character EPC limit)
Must be on device unless justification submitted with certification
application, except when e-labeling is permissible and selected.

4-6 pt. minimum guideline – with option for placement in manual.

FCC ID cannot be used until certification issued.
 Any additional statements depend upon rules which will govern the
device’s operation
 E.g., unlicensed (Part 15) certified devices, condition of
operation statement similar to verification (general case), unless
not practical due to size.
 Host devices must identify modular transmitters
29
Information to User
 Many devices have additional requirements for information provided
to user under rules governing the operation of the device:
 Part 15 Class A and Class B unintentional radiators (e.g., PCs).
 E.g., warning that changes not approved by the responsible party could void
the user’s operating authority, compliance statement., and statement
concerning potential for harmful interference to radio and TV
 DOC devices required an additional compliance statement in user
manual or on separate sheet available at time of marketing that, among
other things, identifies the responsible party.
 Whether special accessories such as shielded cables and/or special
connectors are required to comply with the emission limits.
 Hearing Aid Compatibility Information under Part 20.
30
Record Retention Obligations


The responsible party for each device subject to verification, DOC, or certification
shall retain

original design drawings and specifications for the device and all changes that have
been made that may affect compliance with FCC rules

a record of procedures used for production inspection and testing to insure
compliance

a record of measurements made on an appropriate test site that demonstrate
compliance with applicable regulations.
Records must be retained for two years after the manufacture of the device has been
permanently discontinued (or until a completion of an FCC investigation or other
proceeding regarding the equipment, whichever is later), except that devices subject
to certification only, for which records must be kept only for a one year period after
these events

Certain variations to the retention rules may apply (e.g., equipment subject to DOC
assembled using modular components subject to DOC or certification, or equipment
modified by a party other than and not under authority of the original responsible
party)
31
FCC Inspection

Upon reasonable request from Commission, responsible party must submit
or make available for inspection records required to be retained and one or
more sample units for testing at the Commission's Laboratory.
 Opportunity to demonstrate shipping (which is at responsible at party’s
cost) is impractical based on size, weight, power requirements, or other
good reason

FCC may also request access to the manufacturing plant and facilities.

Failure to comply to Commission request within 14 days (absent an
extension) may be cause for revocation and a freezing of further
authorizations.

Practice Note: All mail from FCC should be routed to a specific point of
contact responsible for compliance
32
Corporate Transactions
 General rule: An equipment authorization may not be assigned,
exchanged or transferred to a second party
 Exception: A grantee of an equipment authorization may authorize a second
party to manufacture the equipment covered by the grant of the equipment
authorization provided the equipment still bears the same FCC Identifier, but the
grantee remains the party responsible to the Commission
 Notice of changes in name and/or address of the grantee of an
equipment authorization, shall be submitted to the Commission via
the Internet within 30 days
 Transactions affecting the grantee (transfer of control , mergers, or
transfer of manufacturing rights) require Notice to the FCC via
Internet within 60 days
 In the case of verification or DOC, after sale or merger of the
responsible party, new responsible party shall ensure complaince
33
Enforcement Actions

Investigations and proceedings handled by Enforcement Bureau

One year Statute of Limitations

Possible outcomes of Bureau investigations:


Citation

Consent Decree

Notice of Apparent Liability (NAL)
Penalties for marketing of unauthorized devices

$7,000 base penalty for unlawful marketing -- maximum $16,000 for each violation or each
day of a continuing violation up to $122,500 for any single act or failure to act

Violations could be imposed for each device sold or each day a device is marketed

Seizure of equipment (in rem forfeitures)

Criminal sanctions available, including imprisonment
34
Compliance Plans
 Consent Decrees almost certain to include a compliance
plan:
 Usually 3 years
 Require ongoing education and training programs
 Status reporting requirements
 Designate compliance officer
 Self-reporting of violations
 Compliance plans can be time consuming and expensive
to implement
35
Representative Enforcement Actions
 RGS Group Inc. dba International Superstore (January 28, 2015)
 Citation and Order against retailer marketing signal jammers
 No fine but obligations to report on remedial actions and provide
information on suppliers and sales
 Fines for failure to respond could prove substantial
 Compliance Note: Treat any request for information from EB
seriously
 ARRI, Inc. (June 17, 2014)
 Consent Decree entered into against retailer of cameras for
marketing unauthorized wireless camera accessories
 Investigation in response to complaint about illegal marketing led
to civil penalty of $80,000 and three year compliance plan
36
Representative Enforcement Actions (cont’d)
 AIT, Inc. and Southern Telecom, Inc. (October 29, 2014)
 Consent Decree against manufacturers and marketers of tablets,
digital music players, Bluetooth headphones and other devices
 $260,000 civil penalty and 3 year compliance plan
 Bureau responded to complaint that AIT/Southern marketing
unauthorized equipment
 Among the violations admitted were failure to test and properly
label tablets prior to marketing
 Bureau found that certain AIT/Southern mp3 players were tested
under the verification process rather than DOC/certification,
which was required because they connected to a computer and
were therefore peripheral devices
37
Representative Enforcement Actions (cont’d)
 ASUSTeK Computer Inc. (August 26, 2014)
 Consent Decree against Taiwanese manufacturer and marketer
of consumer electronics
 $240,000 civil fine and 38 month Compliance Plan
 Investigation started by a notification from Industry Canada to
FCC regarding possible lack of compliance with U.S. SAR limit
 Bureau received independent complaint that ASUSTeK was
marketing out of compliance devices (power exceeded limits)
that included test results
 ASUSTeK testing of inventory after investigation began revealed
that a number of devices were modified without authorization
38
Representative Enforcement Actions (cont’d)
 C.T.S. Technology Co., Limited (June 19, 2014)
 $34.9 million landmark NAL to foreign marketer of GPS, cell and
other signal jamming devices
 Maximum penalty of $122,500 applied for each of 285 models
advertised for sale
39
Representative Enforcement Actions (cont’d)
 Intel Corporation (July 2, 2014)
 Consent Decree concerning Intel’s manufacture and import,
operation, advertisement of prototype smartphones and tablets
 “Payment” of $144,000 and three-year compliance plan
 Intel imported the devices for business customers to use to
develop their own products for sale to the general public
 Intel disclosed (under prior version of the applicable rules)
 Operation prior to authorization and without STA or permission of
the licensee for the frequencies of operation
 Importation limits exceeded for unauthorized devices
 Display of unauthorized device at trade show without proper notice
40
What to Look for in 2015 and Beyond
 TCBs will assume responsibility for all certification
 FCC will implement E-LABEL Act
 Impact of increased spectrum sharing requires vigilance
 Increasingly complex rules that equipment manufacturers must
demonstrate compliance with as part of equipment authorization
process
 Manufacturers and retailers should stay abreast of any sunset rules
that affect their products
 Stepped Up Enforcement Activity
41
Questions?
Chip Yorkgitis
Joshua Guyan
Dawn Damschen
Partner,
Senior Associate,
Associate,
Communications
Communications
Communications
Phone: (202) 342-8540
Phone: (202) 342-8566
Phone: (202) 342-8503
[email protected]
[email protected]
[email protected]
For more information about recent FCC enforcement actions, please subscribe to
our Comm Law Monitor blog: www.commlawmonitor.com
42
Upcoming Spectrum Enforcement Webinar
Spectrum Enforcement
(tentatively*) Thursday, May 7th from 12:00 – 1:00 PM ET
Chip Yorkgitis
Joshua Guyan
Dawn Damschen
Partner
Senior Associate
Associate
* Invite will be sent once date is finalized
43
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