Last Thursday, the FCC reformed its equipment approval rules, which Commissioner Clyburn described as the first “comprehensive” review of these rules since 1998, although the rules remain complex and challenged by the fast pace of innovation in electronic equipment. These rules impose technical requirements on devices that emit radiofrequency (“RF”) energy (intentionally or unintentionally) before they are imported, marketed, or operated within the United States in order to prevent harmful interference with other devices and communications services. The proliferation of wireless communications devices has created a greater need for preventing RF interference while at the same time increasing the number of devices requiring equipment authorization. The order adopted by the FCC streamlines the FCC’s “self-approval” processes, permits electronic labeling of RF devices, eases RF equipment importation requirements, and updates RF equipment measurement standards.
Background
Equipment that emits RF energy generally must be authorized by the FCC prior to being marketed, distributed, and/or imported into the United States, with limited exceptions such as for demonstration devices at trade shows. Historically, RF device authorization has occurred through one of three procedures (in order of most to least stringent): Certification, Declaration of Conformity (“DoC”), and Verification. The guiding principles underlying the FCC’s rules in determining which procedure applies to any particular device is that the more stringent processes apply wherever the device in question presents a higher likelihood of significant and harmful interference.
Under current rules, two of the authorization procedures, Verification and DoC, are similar and often referred to as “self-approval,” although the DoC process has the added requirements of: (i) engaging an accredited testing laboratory, (ii) including a written compliance statement from the manufacturer, and (iii) including a specific FCC logo on the equipment identification label signifying that the equipment meets the FCC’s requirements. The draft order combines the Verification and DoC processes into a single process to be called the “Supplier’s Declaration of Conformity” or “SDoC,” which is described in more detail below.
The draft order does not impact Certification, however, which is the process required for devices with the greatest potential to cause harmful interference. Certification is only issued after a device has undergone testing at an FCC-approved laboratory, and is used for devices such as cell phones and wireless local area network equipment. The Certification process includes its own labeling requirements, importation restrictions, and specific testing procedures.
Despite the streamlining reforms set forth in the draft order, the FCC’s equipment approval rules will remain often difficult for device manufacturers, importers, and service providers to navigate due to the initial difficulty of determining which approval process applies to any given device, and to the fact that a single device can be subject to multiple approval processes depending on the type and number of functionalities contained in that device. Nevertheless, given the sheer growth of connected devices in recent years requiring some level of approval under the FCC’s rules, streamlining of the FCC’s approval process is a welcome development.
Reforms
The draft order adopts several reforms designed to better align the FCC’s equipment authorization processes with the current state of RF device technology and the global marketplace, permit more efficient labeling practices, and streamline the FCC’s importation procedures.
New Supplier’s Declaration of Conformity Process Would Subsume Verification and DoC
The draft order replaces the two existing “self-approval” procedures, Verification and DoC, with a single process – the SDoC. The new SDoC process differs from the traditional DoC process in that it will no longer be necessary to use an accredited lab and it will no longer be necessary to display the FCC logo for SDoC-approved equipment. The FCC found that these aspects were not necessary as equipment historically subject to DoC had a high level of compliance and posed minimal risk of harmful interference. For items previously subject to Verification, the new SDoC compliance requirements will be slightly more burdensome as the FCC will require each device approved under the SDoC procedure, however, to include a compliance statement and identify a party located in the United States responsible for ensuring compliance with the FCC’s technical requirements. The requirement to name a responsible party located in the United States reflects the global nature of today’s marketplace for electronic and communications devices.
Notably, the new SDoC process does not expand the universe of devices that qualify for self-approval. Devices currently subject to the Certification process will remain so because the FCC found that they pose the greatest potential to cause harmful interference.
Devices previously approved under the Verification process (the least rigorous of the three existing approval processes) would continue to be compliant, and the draft order gives manufacturers up to one year from the effective date of the new rules to stop availing themselves of Verification process approvals.
Electronic Labeling
In 2014 Congress adopted the Enhance Labeling, Accessing, and Branding of Electronic Licenses Act (“E-LABEL Act”), which applies to all RF devices authorized by the FCC that have the “capability to digitally display labeling and regulatory information.” The E-LABEL Act directed the FCC to “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.”
Although the FCC had permitted E-labeling pursuant to a guidance document, the draft order codifies and updates its rules to permit electronic labeling where devices meet certain requirements. First, any digitally-displayed labeling and compliance information must be accessible to the consumer in no more than three steps. For example, a “three step” compliant sequence on a subject device would consist of (1) a user accessing the device settings menu; (2) the user accessing a submenu of legal information; and (3) the user accessing a further submenu of FCC compliance information. In addition, the user must be provided with prominent instructions on how to access the required labeling and compliance information that is made available electronically. Specific instructions on how to access the information must either be included with the device (packaging material, operating instruction booklet, etc.) or on a product-related website so long as the packaging material includes a statement that information on accessing this information is available on the internet, along with effective instructions on how to access the direct website containing the required information.
The draft order adopts a rule that e-labeling may be used for “any . . . information that the Commission’s rules would otherwise require to be shown on a physical label attached to the device,” such as prototype and test device labels. One important exception is that the new rules will require temporary physical external labels that the device complies with the FCC’s equipment approval rules, which may be the FCC ID in many cases. This is to facilitate quick and easy inspections by, for example, customs officials without the need to turn on the device to access compliance notices. The only other instance where the FCC will require a physical label is in “those limited cases where an electronic label would be incapable of conveying the information in a timely manner.”
Importation
The draft order eliminates the requirement to file the FCC-specific customs declarations form (FCC Form 740). The FCC had previously found that these forms were of limited use, and issued temporary waivers of the requirement for importers to file them (see e.g., the most recent waiver). The proliferation of RF devices led to the filing of approximately 2 million of these forms in the past year alone, generating needless paperwork for industry and the FCC. The draft order would permanently eliminate the requirement to file the form, based on the FCC’s finding that the information collected was not useful in the enforcement of its rules, particularly given how much information is available online.
However, the FCC still retained the requirement that there be an entity that assumes responsibility for the compliance of an imported device (the “responsible party”). Rather than declare on a form who the responsible party is, the new rules require that the importer, ultimate consignee, or their designated customs broker “determines” which of them will be the responsible party prior to the importation of a device. For SDoC devices, the rules require that the responsible party be located in the United States. For Certified devices, the importer or the consignee may assume this responsibility.
Furthermore, the new order increases the number of RF devices that may be imported for “trade shows.” The current rules allow for the importation of up to 200 units used in connection with licensed services and 10 units for all other products. The revised rule will now permit the importation of up to 400 devices of any type for demonstration purposes at trade shows, provided that those devices will not be sold or marketed.
Measurement Procedures
The draft order proposed adoption of several modifications intended to better enable the FCC to keep up with changes in technology and in industry measurement standards by increasing the visibility of the FCC’s Knowledge Database, which provides guidance regarding the FCC’s equipment approval rules. The draft order also sets forth rules that respond to the recent adoption of the ANSI ASC C63 standards, which will streamline testing procedures for manufacturers to show compliance with the FCC’s technical requirements. Further, the rules regarding measurements for composite systems will be moved from Part 15 to Part 2 of its rules to better indicate their more general applicability. Overall, these modifications will help ensure that RF equipment subject to the FCC’s rules are tested properly and address the evolution of how new technologies are adopted in the latest generation of devices.
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Despite the welcomed streamlining reforms adopted in the new order, the FCC’s equipment approval rules can often be difficult (and will likely remain so) for device manufacturers, importers, and service providers to navigate due to the initial difficulty of determining which approval process applies to any given device, and to the fact that a single device can be subject to multiple approval processes depending on the type and number of functionalities contained in that device. DWT will monitor the implementation of the order, and provide updates as necessary.
