FCC Overhauls Experimental Licensing Rules

by Davis Wright Tremaine LLP

The Federal Communications Commission (FCC) recently announced a significant overhaul of its experimental licensing rules designed to make it easier for higher education institutions, manufacturers and health care facilities to develop, test and bring new Radio Frequency (RF) devices to market. The FCC will institute three new types of experimental authority to supplement conventional experimental licenses—program, medical testing and compliance testing—allowing operation of multiple uncertificated devices under a single 5-year renewable license in virtually all frequency bands.

The program experimental license in particular could prove transformative to the RF equipment market, but does not wholly exempt licensees from FCC oversight. Under the new program experimental regime, licensees will be required to register with the FCC and notify the agency of upcoming individual experiments and provide results of same via a new, publicly available FCC web portal. The FCC preserved the option for licensees to request confidential treatment of sensitive data associated with experiments and new products. Frequency, power, location, emission designators and contact information will always be required of applicants and will always be available to the public.

The FCC also relaxed its market trials rule, for the first time permitting sale of RF equipment between licensees in a market trial, provided that they each have an experimental license. Further, licensees will be able to lease RF equipment to market trial participants. In addition, the FCC increased its current importation limits, raising to 4000 the number of RF devices—whether operating on a licensed frequency or not—that can be imported for compliance testing and market studies.

Rule Consolidation
The FCC’s streamlining efforts begin with the creation of a new rule subpart that consolidates the agency’s experimental license authority. In the past applicants had to scour and cross reference various, unconnected FCC rules depending on which band of the spectrum a particular device might operate. Going forward all experimental licenses will be considered under newly consolidated Part 5—Experimental Radio Service (ERS) as administered by the FCC’s Office of Engineering and Technology (OET), although experimental broadcast service applications formerly processed by the FCC’s Media Bureau will remain under the Media Bureau’s purview.

The FCC also decided to convert all existing developmental licenses to program experimental licenses, on the same technical terms that licensees originally received.

Program Experimental License
Acknowledging past problems in trying to keep pace with technological innovations, the FCC established a new type of experimental license—a program license—under which qualified institutions are permitted to conduct ongoing research and experimentation under a single experimental authorization for a 5-year period on a non-interference basis, without having to obtain prior OET authorization for each distinct experiment or series of unrelated experiments. The program license differs markedly from a conventional experimental license, which remains an option under the revised Part 5 ERS rules, and which authorizes a narrowly defined single experiment or several closely related experiments and which are often limited to a defined geographic area. A program license will permit licensees to conduct unlimited, unrelated experiments at defined geographic locations under the licensee’s control provided that, with limited exceptions, they do not operate in restricted frequency bands or create harmful interference. Otherwise, licensees may conduct experiments within a broad range of frequencies, emissions and power levels to support ongoing research. Program licenses will be issued for a 5-year term and may be renewed for additional 5-year periods.

Eligibility to hold a program experimental license is extended to:

  • A college or university with a graduate research program in engineering that is accredited by the Accreditation Board for Engineering and Technology (ABET);
  • A research laboratory (not limited to federally funded);
  • A hospital or health care institution (non-clinical trial testing only);
  • A manufacturer of RF equipment; or
  • A manufacturer that integrates RF equipment into its end products.

Each applicant for a program experimental license must specify how it meets eligibility requirements, a certification of RF expertise or partnership with another entity possessing such expertise, the purpose of its proposed experimental program, and whether its research program includes federal frequencies, Commercial Mobile Radio Service (CMRS) frequencies, public safety frequencies or medical testing. Program experimental licenses may not be transferred without FCC approval. Additionally, applications must specify and will be limited to a geographic area that is inclusive of an institution’s real-property facilities where the experimentation will be conducted and that is under the applicant’s control. If an applicant needs to conduct experiments in more than one defined geographic area, it must apply for a license for each location.

Restricted Frequency Bands
The FCC remains concerned about experimentation involving so-called restricted frequencies, and its policy remains to discourage use of such frequencies for experimental licenses. Anyone interested in conducting experiments on restricted frequency bands at or below 38.6 GHz (i.e., safety-of-life services, including aviation services and passive services designated as restricted in Section 15.205 of the FCC’s rules) must apply for a traditional conventional experimental license and make a showing that the experimental use of such frequencies is in the public interest. Applications concerning public safety bands will be considered on a case-by-case basis, and likely will require the applicant to prove a lack of harmful interference prior to operation.

Critical Service Bands
Critical service bands (i.e., bands used for the provision of commercial mobile services, emergency notifications, or public safety purposes) are eligible for program licenses, but the applicant must submit a specific plan to avoid harmful interference to operations, provide prior notice to incumbent licensees and their end users of potential impacts of the experiment, and describe how the applicant will identify and eliminate harm from the experiment.

The following bands used for the provision of various commercial mobile services (including broadband)—Cellular Radio Service, Specialized Mobile Radio (SMR) service, broadband Personal Communications Service (PCS), Advanced Wireless Service (AWS), 700 MHz band, Broadband Radio Service (BRS)/Educational Broadband Service (EBS), and Wireless Communications Service in the 2.3 GHz band—are included in the critical service bands.

Responsible Party and Notification Requirements
Program experimental licensees must supply the FCC a “stop buzzer” point of contact, a person available during the entirety of an experiment who can stop an experiment immediately upon complaint of interference or other harm. The contact, and all other application information, will be uploaded to a new, publicly available FCC web portal. The FCC envisions that interference complaints will be handled privately, but the agency reserved the right to resolve complaints as well. A program licensee must also provide to the FCC specifics about each individual RF experiment ten (10) calendar days prior to commencement, again via the web portal. The applicant must call out any CMRS or public safety frequencies it intends to use and, no matter what frequencies are involved, the plan must identify the measures taken to avoid causing harmful interference to any incumbent service licensee. Although the FCC rejected calls for prior consent from or coordination with incumbent licensees, the agency emphasized that the no-interference component of the program license application is an “essential requirement” that should not be taken lightly: “We expect that in exchange for the flexibility we are providing through the program license, program licensees will do a thorough analysis to ensure that incumbent licensees are protected from harmful interference.”

Federal Spectrum
Any program application or individual experiment that involves exclusive or shared federal spectrum will face a slightly different approval process at the FCC. First, the FCC will coordinate all such requests with the National Telecommunications and Information Administration (NTIA), which has 15 days to respond to the FCC. Thus, applicants are advised to build in sufficient lead time—likely longer than 15 days granted to NTIA—prior to the experiment. Second, the FCC will conduct a location-specific coordination with NTIA and based on the outcome of that coordination the FCC may place special conditions on the license, including a list of frequencies or frequency bands on which the applicant would be restricted from operating on at the proposed location.

Compliance Testing License
Laboratories engaged in compliance testing of RF equipment, including those operating an Open Area Test Site (OATS) but that are not themselves manufacturers or licensed service providers are eligible for compliance testing licenses containing similar (but slightly less onerous) terms, conditions, and renewal processes as program experimental licenses. For example, the compliance testing license will be issued for a 5-year, renewable term. The new compliance testing license will be available both to those test labs the FCC currently recognizes for RF product testing and to any other test lab the FCC finds has sufficient expertise to undertake such testing. (Any non-recognized lab that desires formal recognition must comply with the FCC’s program requirements outlined in Part 2.948 of the FCC’s rules. Any lab that desires designation as a Telecommunications Certification Body (TCB) must still undergo a separate accreditation process.) Test labs will not face most of the limitations and reporting requirements imposed on program licenses: “Specifically, because compliance testing often involves emission measurements in restricted bands, compliance testing licensees will be exempt from the prohibition on operating in the restricted bands listed in 15.205(a) of the rules and from operating in the bands allocated exclusively to the passive services.” Similarly, the FCC will not impose the designation of a “stop buzzer” point of contact, the 10-day notification period requirements on compliance testing licenses or the filing of a narrative statement detailing the results of the testing done under a compliance testing license.

Compliance testing authority is limited to only those testing activities necessary for product certification, which does not extend to so-called “immunity testing.” Immunity testing, also sometimes called “susceptibility testing,” subjects a product to various RF phenomena to gauge the effect on the product's performance. Such testing can entail high power emissions over a very broad swath of spectrum, which could pose a significant risk of interference to other systems, including federal systems. The FCC retained the requirement that immunity testing must take place pursuant to a traditional conventional experimental license, with legacy coordination and interference precautions requirements.

Medical Testing License
The FCC adopted another new experimental authority called a “medical testing license,” which will be made available to qualifying “health care facilities.” Under existing FCC rules left unchanged by the FCC’s new experimental regime, a health care facility is defined to include:

hospitals and other establishments that offer services, facilities and beds for use beyond a 24 hour period in rendering medical treatment, and institutions and organizations regularly engaged in providing medical services through clinics, public health facilities, and similar establishments, including government entities and agencies such as Veterans Administration hospitals; except the term health care facility does not include an ambulance or other moving vehicle.

The medical testing license will allow clinical trials of medical devices that have already passed through the early developmental stage and are ready to be assessed for patient compatibility and use, as well as operational, interference, and RF immunity issues in real world situations. Unlike a program license—which is geographically contained—a medical testing license entitles a health care facility to deploy RF devices off site, including to home-bound patients or to ambulatory patients using implanted or body-worn medical devices.

Like a program experimental license, a medical testing license will be conditioned on appointment of a “stop buzzer” contact, prior public notice of experiments via the FCC registration portal and public disclosure of experimental results. The FCC was careful to note that applicants may face separate FDA requirements that a medical testing license would not address.

Market Trials
To date, FCC rules prohibited marketing or operation of RF equipment prior to authorization, with certain exceptions. For example, the rules allow for advertising and display, conditional sales to certain businesses, and outright sales of equipment not yet authorized so long as proper notice is provided to the prospective buyer. Further, a manufacturer is permitted to operate its product for demonstration or evaluation purposes under authority of a local Commission-licensed service provider so long as that equipment operated in the bands licensed to that service provider. Additionally, the rules permit licensees operating non-certified equipment under experimental radio authorizations to conduct “limited market studies,” on a case-by-case basis subject to limitations established by the FCC. The FCC’s recent ERS order changes the substance of the market trials rules in two important ways.

Residential Trials
First, going forward manufacturers will be allowed to operate unauthorized equipment (e.g., cell phones, smartphones or tablet computers) in a residential area, so long as the equipment is operated in conjunction with, and under the authority of, a service provider’s license.

Trade Shows
Second, the FCC has decided to allow general operation of as-yet certified RF devices without the need for an experimental license, provided that the devices are operated as part of a trade show demonstration and at or below the maximum power level permitted for unlicensed devices under Part 15. The FCC has expanded this exception for devices designed to operate under any rule part, not just Parts 15, 18, or 95, but capping the power level for demonstration purposes to the Part 15 levels.

Product Development and Marketing Trials
Product development and marketing trials will be considered under the FCC’s current conventional—rather than program—experimental license procedures, given the ad hoc nature of such trials. However, the FCC did relax some of the constraints formerly imposed on trial participants. In a product development trial, licensees must own all of the equipment, must inform all participants of the nature of the trial, and must not market devices or offer services for hire. Market trials, coming later in the development process, will also have a requirement that the licensee retains ownership of all equipment, but the FCC will allow limited marketing of equipment. Specifically, sales of equipment between licensees in a market trial will be allowed, provided each licensee has an experimental license authorizing a market trial. The FCC will also permit the lease of equipment to trial participants.

Importation Limits
Former FCC rules allowed up to 2000 units for RF products designed solely for operation within a radio service that requires an operating license, and up to 200 units for all other devices. Here the FCC departed from its prior analysis, deciding to increase the importation limit for all RF devices—those that require a license and those that do not—to 4000 units.

Clarifying Amendments to Rules Governing Conventional Licenses
The FCC altered its rules governing conventional experimental licenses to provide licensees added flexibility to alter equipment without prior authorization as necessary as long as the alteration does not increase interference potential to authorized services. Thus, the operating frequency may not deviate more than the allowed tolerance, emissions are not permitted outside the authorized band, and the ERP (or EIRP) and antenna must comply with the license and governing regulations. Permanent changes to emissions still require an application for modification, but such applications may now be filed immediately as well as upon renewal.

In the same vein of increased flexibility, the FCC also amended its rules to clarify that conventional license applications need not mirror exactly the parameters of a preceding Special Temporary Authority (STA). The parameters may differ as long as any changes do not increase the interference potential of the equipment being tested. Thus, antenna heights and power levels may be reduced but not increased. Contract numbers may change but geographical locations may not.

While the Commission declined to adopt rules modifying its existing coordination processes and procedures (and specifically rejected rule changes imposing timelines on application processing) it did commit to upgrading its electronic filing system and to making more information available about the status of pending applications.

Finally, the FCC will process pending applications for conventional experimental licenses under its existing rules, on the theory that some applicants may need (or prefer) only restricted authority to conduct one-time experiments.

The FCC’s ERS order fundamentally changes the manner by which RF licensees and others may develop, test and market new equipment. This summary does not address all of the issues discussed by the FCC—issues including station identification requirements, product development trials, evaluation kits, anechoic chambers and Faraday cages, just to name a few. It is entirely possible, too, that the FCC may clarify or even amend some of its new rules in the coming weeks and months as the agency’s program experimental and other opportunities meet their own real world tests. Please contact us with questions about the ERS order or the new FCC licensing rules.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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