Through the years, both our law firm and its affiliated consulting arm, The Commpliance Group, have represented numerous manufacturers, importers, and vendors of radio frequency (“RF”) equipment with an assortment of legal and regulatory compliance matters on nationwide and international bases.  We specialize in RF equipment authorization matters, rule waivers, vendor contracts, and representing clients in regulatory enforcement actions.  In recent times our law firm has been called upon to represent clients facing actions initiated by the Federal Communications Commission’s (“FCC” or “Commission”) Enforcement Bureau pertaining to issues concerning RF equipment marketing, authorization, and operations.  We have also published guides regarding FCC and international RF equipment authorization requirements. 

In the interests of sharing knowledge and educating clients about the FCC’s consumer electronics rules and policies,  we have reflected on our experiences and compiled the following “Primer.”  We hope you find the following information both useful and informative.
 
Consumer Electronics Marketing Rules

Consumer electronics are integral parts of the Internet of Things.  Manufacturers are designing and marketing consumer electronic devices that can perform functions that were unheard of only a year or so ago.

Unfortunately, consumer electronics are also high on the regulatory radar screen.   During the past few years, the FCC has levied substantial monetary forfeitures on manufacturers, importers, vendors, and distributors for marketing unauthorized consumer electronic devices.  These fines have ranged from tens of thousands to hundreds of thousands of dollars.  The Commission has also required that marketers of non-compliant devices implement expensive compliance programs to ensure that future devices are compliant with FCC rules.

The FCC’s consumer electronic compliance rules are intended to implement Section 302(b) of the Communications Act, which states that RF devices may not be marketed in the United States unless the devices have been tested for compliance with the applicable technical requirements in accordance with applicable authorization procedures.  The FCC’s rules define “marketing” very broadly:  “The sale or lease, or offering for sale or lease, including advertising for sale or lease, or importation, shipment, or distribution for the purpose of selling or leasing or offering for sale or lease.”

Consumer Electronics Classification & Authorization Requirements 

Many consumer electronic devices are classified by the FCC as “unintentional radiators.”   An unintentional radiator is a device that generates RF energy for use within the device or sends RF signals by conduction to associated equipment via wiring, but does not transmit RF energy for any purpose.   In general, most RF devices that do not contain transmitters are classified as unintentional radiators.  

The FCC requires that all unintentional radiators be authorized via either the Declaration of Conformity or verification procedures.   These procedures are “self-authorizations,” which basically consist of testing a prototype at a reputable lab, obtaining approval from the lab, and properly labeling all the devices that are marketed.   There are various additional requirements within each of these procedures that are beyond the scope of this advisory.      

Exempt and Non-Exempt Consumer Electronics Equipment

The FCC’s policies concerning consumer electronics has evolved over the years to the point where it has exempted entire categories of RF equipment from its marketing rules.   The following tables illustrate some of the categories that may be exempt and those that are non-exempt:   
 

Comply Before You Market

The above listed exempt categories are high-level descriptions.   For devices that contain digital circuitry, only the digital circuitry directly responsible for operation of the basic functions associated with the appliance is exempt, and must be contained within the major appliance and not remotely connected via wire, cable or other communication system.  This would include, for example, the digital controller board for a washing machine responsible for different cycles and washing modes

Appliances that:  (1) contain other ancillary functions (not directly responsible for the basic functions); or (2) contain other non-housekeeping appliance or other functions, are not exempt from equipment authorization procedures and regulations. These other functions require testing and compliance to the appropriate equipment authorization procedures and regulations.

For example, a stove that contains an in-house communication function over power lines to communicate with a home automation system or an integrated television receiver does not exempt the home automation system and television receiver functions from their applicable equipment authorization requirements.  Many other appliances, such as consumer inductive cooking stoves and microwave ovens, are subject to various technical standards and equipment authorization procedures. Moreover, all appliances are subject to the FC requirements that they not cause harmful interference to other devices, and the Commission reserves the right to inspect all consumer electronic devices.

Due to the increase in FCC enforcement actions of its equipment authorization rules, any company in RF equipment supply chain should understand the FCC’s rules and policies that concern not only equipment authorization and marketing, but also which company is responsible for rule compliance.  The FCC has very strict rules concerning the party responsible for compliance under varying marketing scenarios.  It is strongly recommended that manufacturers or importers make every effort to meet the specific technical standards, follow appropriate FCC equipment authorization procedures, and comply with quality practices to ensure all units marketed are, and will remain, compliant.

Accordingly, it is very important that parties to equipment vendor or distribution contracts understand their rights and responsibilities and ensure that they are covered in the event of an FCC enforcement action.  And, if a company is the subject of an FCC enforcement action, competent legal representation is a must.   Companies that try to face the FCC alone could find themselves ordered to take their products off the market. 

The rules and policies listed in this advisory may be updated soon.  We will publish further advisories as information becomes available.

If you would like additional information concerning RF equipment rules, including those not addressed in this advisory, please contact IoT attorney Ronald E. Quirk, Jr. at (703) 714-1305 or req@commlawgroup.com.  Further information about The CommLaw Group’s Internet of Things practice is available here.