• FCC Enforcement Advisory Cautions Against Marketing Electronics Without Required Equipment Authorizations
  • July 11, 2018 | Author: Mitchell F. Brecher
  • Law Firm: Greenberg Traurig, LLP - Washington Office
  • The Enforcement Bureau of the Federal Communications Commission (FCC) recently issued an Enforcement Advisory warning sellers and operators of audio/video transmitters (A/V transmitters) intended for use with drones that they must comply with relevant FCC equipment authorization rules prior to marketing and operating radiofrequency (RF) devices.1 The FCC issued the advisory after observing an increase in websites advertising and selling drone AV transmitters that are not authorized in compliance with the FCC’s rules. The FCC explained that because AV transmitters are intentional radiators of radio energy they may not be marketed or used without the appropriate FCC equipment authorization. The FCC’s Enforcement Advisory serves as an important reminder that certain categories of RF devices, including many consumer products not normally thought of as communications devices, must have an equipment authorization prior to being marketed.

    Marketing Activities Subject to FCC Regulation

    The FCC regulates several aspects of RF devices (i.e., electronic and electrical products that are capable of emitting radio frequency energy). Those regulations govern technical parameters, operation, marketing and labeling of such devices. The FCC rules define marketing to include “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.”2 Thus, online advertisements, such as the online advertisements for AV transmitters noticed by the FCC, qualify as marketing. There are certain marketing activities that are exempt from the FCC’s rules, and therefore, do not require the relevant RF device to have an equipment authorization. Those activities include market trials conducted pursuant to an FCC experimental license, displaying a RF device at a trade show, and conditional sales contracts between a manufacturer and a retailer. Each of these exceptions requires the marketer to meet certain additional requirements.

    RF Devices Regulated by the FCC

    All RF devices fall within the jurisdiction of the FCC. However, the type of RF device dictates the scope of FCC regulation. Intentional radiators (devices that broadcast radio energy to perform their functions) must have an equipment authorization known as a certification prior to marketing. Intentional radiators include mobile phones, garage door openers, wireless and Bluetooth connections, radio transmitters, and broadcast equipment.

    Unintentional radiators (devices that produce radio signals that are broadcast through space or along power lines) must have an equipment authorization known as a Supplier’s Declaration of Conformity (Supplier’s DoC) prior to marketing. Unintentional radiators include televisions, radio receivers, LED lightbulbs, exercise equipment, portable fans, and electronic games and toys. The FCC has exempted certain categories of unintentional radiators from the equipment authorization requirement, but those devices must still meet any applicable technical standards and may not cause harmful interference. Exempt unintentional radiators include digital devices used in vehicles, industrial and medical testing equipment and large household appliances, such as stoves, dishwashers, and washing machines.

    Incidental radiators (devices not designed to use or generate significant radio energy, but that nevertheless emit energy that can cause interference) do not need an equipment authorization prior to marketing. However, if such devices cause harmful interference to the operation of other devices, the operation of the devices must be modified or terminated. Incidental radiators include motors used in vehicles, fluorescent lights, copiers, and basic (non-digital) power tools.

    Equipment Authorizations: Certification versus Supplier’s Declaration of Conformity

    As noted above, prior to marketing, intentional radiators must have a certification and unintentional radiators (unless exempt) must have a Supplier’s DoC. To obtain a certification, a responsible party (usually the manufacturer or importer) must have tests conducted by an FCC accredited laboratory and submit the test results to an FCC recognized Telecommunication Certification Body (TCB). Upon grant of a certification, the device is assigned an FCC ID that must be permanently affixed to the device. In contrast, a Supplier’s DoC is based on testing performed by a laboratory that does not need to be FCC-accredited and there is no formal request made to a TCB or the FCC. Rather, the responsible party maintains test data and reports and must provide them to the FCC upon request.

    Enforcement

    Entities that market RF devices without the required equipment authorization may be subject to FCC enforcement actions initiated by the FCC’s Enforcement Bureau or in response to a complaint. Enforcement actions may include the issuance of a Notice of Apparent Liability recommending a monetary forfeiture, with the alleged violator having an opportunity to respond. The FCC may then issue a forfeiture order directing the responsible party to pay a fine. The base forfeiture amount for equipment authorization violations is $7,000 (which the FCC can adjust upward or downward depending on several factors).3 However, the amount of any forfeiture penalty shall not exceed $19,639 for each violation or each day of a continuing violation up to a maximum of $147,290 for any single continuing violation.4 The FCC also commonly enters into consent decrees with violators that include the payment of civil penalties and admissions of liability.