Norman Leventhal is a Partner in our Washington, D.C. office
In a Report & Order released January 31, the FCC adopted sweeping revisions to its rules for experimental licenses. Until now, every individual, company or institution was required to apply to the FCC for authority to use radio frequencies to conduct experimental operations whatever the purpose: security, medical research or commercial applications.
The problem was three-fold: first, preparing and filing the experimental license application, and waiting for approval, was time-consuming; second, if the experiment required changes in technical parameters (for example, power, emissions, frequency selection) an amendment and further authorization was required (in the meantime, the experiment came to a halt); and third, artificial limits on importation of RF devices for compliance testing and suitability for marketing.
Now, this process will be streamlined but, in addition, three broad categories of virtually automatic "experimental" licenses will be made available through a notice procedure:
- Program Experimental Licenses for colleges, research laboratories, health care institutions and manufacturers -- with experience in RF technology -- to conduct ongoing research
- Medical Testing Licenses for health care facilities -- also with RF expertise -- to assess newly developed medical devices, including clinical trials
- Compliance Testing Licenses to be used by Commission-recognized laboratories to undertake product compliance studies under the FCC's equipment authorization procedures
Each such use, however, will be on a non-interference basis to licensed users of spectrum and will require 10-day advance notice and monitoring via a Commission-supported web site.
"Because broadcast experiments pursuant to Parts 73 and 74 of its rules rely heavily on broadcasting-specific engineering and licensing knowledge, and are typically designed to support the operations of existing broadcasters,... [the FCC] is not changing these processes, the ways these applications are filed or evaluated by the Media Bureau, or otherwise disturb existing practice." Instead, the FCC has moved the broadcast experimental rules to a new Subpart D in the newly consolidated Part 5 which now governs all experimental operations.
And, significantly for commercial interests, Subpart H now contains special provisions permitting Product Development and Market Trials -- which can for the first time be undertaken before specific FCC equipment authorization is received. A Product Development Trial is an "experimental program designed to evaluate product performance (including medical devices in clinical trials) in the conceptual, developmental, and design stages, and typically requiring testing under expected use conditions." A Market Trial would, among other things, "permit a manufacturer to operate unauthorized equipment in a residential area, so long as it is operated in conjunction with, and under the authority of, a service provider's license ...[and] licensees in market trials [must] ensure that trial devices are either rendered inoperable or retrieved from trial participants at the conclusion of the trial...."
In this regard, an additional extremely beneficial change is the FCC's decision to loosen the restriction on importation of RF devices which have not yet received Commission authorization. The Commission will now allow up to 4,000 units to be imported (regardless of whether the device is to be used with licensed services) so that "sufficient devices are available for testing, protecting authorized devices from harmful interference, and freeing up Commission resources from addressing excessive numbers of waiver requests..." -- as well as suitability for marketing. A companion rule to allow for the sale of "evaluation kits" (prior to FCC compliance authorization) is a further welcome policy change.
A note of caution: the new rules are complicated and there are many exceptions and conditions so, before proceeding, affected entities should review all of the rules carefully. In addition, because many of the new rules require approval of the Office of Management and Budget they will not become effective until OMB approval is published in the Federal Register.
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