[Editor’s Note: Bob Primosch is a Partner with the Washington, D.C.-based, communications law firm Wilkinson Barker Knauer, LLP]
The FCC is considering rule changes that would make it easier for educational institutions, medical facilities, equipment manufacturers and others to research and test new wireless devices and services on existing spectrum. By reducing paperwork burdens, shortening overall application processing time and giving applicants greater testing flexibility, the FCC hopes to accelerate the wireless product development process and thus shorten time to market.
Comments on the FCC’s proposals are due March 10; reply comments are due April 11. The following is a broad overview of the FCC’s proposals; more specific information is available in the FCC’s Notice of Proposed Rulemaking.
Under the FCC’s current process for issuing “experimental” licenses, any entity seeking access to spectrum for research and testing normally must file a separate application for each project, specifying the exact frequencies and location it intends to use. The FCC is now proposing a new process that would eliminate the problem of multiple applications by permitting applicants to use a range of frequencies in a given geographic area under a single license, provided that they protect non-experimental license holders from interference.
At least three new types of experimental licenses are under consideration. First, the FCC proposes to create a “research program experimental radio” or “RPER” license that would be available to colleges, universities and non-profit research organizations. Under the FCC’s current thinking, eligibility would be limited to (1) Accreditation Board for Engineering and Technology (ABET) accredited institutions that have graduate research programs in place and (2) nationally recognized non-profit research laboratories. Operation would be permitted on any frequency except those listed in Section 15.205(a) of the FCC’s rules (available at http://tinyurl.com/45e3ss6 ) or footnote 246 of the FCC’s Table of Allocations (available at http://tinyurl.com/4o9w2e3).
In addition, operation would be limited to the grounds of the license holder’s campus.
To address the interference issue, the FCC is proposing to require that RPER license holders register certain technical information on an FCC-developed web site at least seven days before testing begins. That information would include:
- Contact information for whomever the RPER license holder has designated to handle interference concerns raised by non-experimental licensees, and who is capable of stopping operations immediately where an unanticipated interference event has been reported;
- the frequencies or frequency bands that will be tested;
- the maximum effective isotropically radiated power (EIRP) or effective radiated power that will be utilized during testing; and
- a description of the geographic area where the test will be conducted.
If after the seven-day period the RPER license holder has received no objections to its proposed testing parameters, testing would be allowed to begin immediately without further authority from the FCC. Where a properly submitted and documented objection is raised, testing would not be allowed to begin until the parties resolve the issue. Also, note that an RPER license holder would be required to prepare and register a specific plan for avoiding interference where it proposes to test on frequencies used for the provision of commercial mobile services, emergency notifications or public safety purposes on the license holder’s campus.
The second type of experimental license under consideration would permit research and testing in larger, geographic “innovation zones” designated by the FCC, subject to roughly the same technical requirements as RPER licenses. It is envisioned that innovation zone licenses would be available to any entity or individual that holds “appropriate technical credentials demonstrating advanced technical competence in radio engineering” – association with a college, university or other entity eligible for an RPER license would be permitted but not required. Thus, an innovation zone license could permit, for example, off-campus testing that otherwise might not be permitted under an RPER license (but, by the same token, the expanded zone of testing may invite more interference concerns and thus could require greater oversight of those issues).
The third type of experimental license under review is a new medical program experimental radio (“MPER”) license that would be available to hospitals and other health care institutions. Again, the same general technical requirements that apply to RPER licenses would apply here. An MPER license would permit testing and operation of new medical devices that use wireless technology for therapeutic, monitoring, or diagnostic purposes, but have not yet been submitted to the FCC for equipment certification. It would also permit testing of devices that use RF for ablation, as long as the equipment is designed to meet the FCC’s technical rules. Interestingly, the FCC raises the possibility that it might permit innovators to test medical devices that might not completely conform to the FCC’s technical rules, if the testing entity has properly assessed the risk of potential interference.
The FCC is still wrestling with the issue of whether eligibility for an MPER license should be limited only to a certain class of medical facilities (e.g., those that have been accredited by a particular certification body). It does, however, propose to require that applicants for MPER licenses demonstrate some minimum level of expertise in radio management. Also, the FCC has tentatively concluded that an MPER license should be granted to the institution that creates and manages the test bed environment, not to the manufacturers or other third parties who may be actually conducting the tests.
Finally, the FCC is reevaluating a different set of rules that are specifically targeted at market studies and market trials. Those rules generally prohibit marketing or operation of wireless devices prior to receiving a grant of equipment authorization. Certain limited exemptions are available for conditional sales, advertising and display, and outright sales to third parties as long as the prospective buyer is advised that the equipment is not authorized.
Among other things, the FCC proposes various rule amendments to clarify when the exemptions apply, and how they interrelate with the experimental licensing rules. Some liberalization of the exemptions is also under consideration. For example, the FCC is proposing to eliminate or relax its rule that prohibits vendors from selling evaluation kits for equipment that has not yet been certified. Likewise, the FCC is exploring whether to raise its cap on the number of uncertified devices that may be imported for testing and evaluation purposes.
In sum, those interested in these items and related issues should consult the FCC’s Notice of Proposed Rulemaking to determine which of the many questions it raises might warrant comment. Those who wish to comment in support of the FCC’s proposals should be especially prepared to address the interference issues that will be front and center throughout the proceeding.