The author is with law firm Fletcher, Heald & Hildreth, on whose blog this article originally appeared.
A lot of new products use the buzzwords “wireless connectivity.” In old-fashioned English, they have radio transmitters. This means they must go through an FCC approval process before they can be sold to the public.
The FCC understandably writes its technical rules around existing technologies. A device made to comply with those rules can get quick authorization, even if intended for a new application. Sometimes, though, the underlying technology is so novel that the existing rules do not reasonably apply, making compliance with those rules impossible. Such a device requires individualized attention from the FCC before it can reach the market.
For a new and different radio technology, the approval process usually takes years – delays that can seriously impede innovation. More than once, a client has approached me with a concept for a new kind of radio device; but when I explained how long FCC approval would take and what it would cost, the client abandoned the idea. Other clients started the process but ran out of time and money along the way. Even when it ultimately succeeds, FCC approval adds hard-to-predict costs and delays to ventures that already carry inherently high risk.
Surely there must be ways by which the proponent of a new technology can secure FCC approval more quickly. These are set out below. Some work better than others in particular situations. The greatest improvements, though, will need a handful of changes in how the FCC goes about implementing its procedures.
Update the rules to embrace the new technology
If technology has evolved beyond the FCC’s rules, why not just update the rules to accommodate the technology? Although the obvious answer, this is rarely a preferred option. It takes too long.
The Administrative Procedure Act (APA), a 1946 federal statute, lays out what an agency like the FCC must do when creating or modifying substantive rules. Briefly, it says the FCC must: let people request a rule change; publish a Notice of Proposed Rulemaking (NPRM) giving advance notice of the proposed rule or amendment; receive comments from interested persons; and publish the rule as adopted. That doesn’t sound too onerous. For about 40 years after passage of the APA, the FCC typically pushed out technical rule changes in six months or less – pretty fast, by government standards. The FCC would simply print the proposed rule in the Federal Register, receive a handful of informed and helpful comments, and issue a Report and Order (R&O) setting out the new rule.
Today, though, a comparable rule change takes at last two years, usually three, and often four or more. The delays have several causes:
-Courts interpreting the APA over the years have added legal requirements that make the NPRM and R&O longer, more complex, and much more time-consuming to prepare.
-With the spread of the Internet, the FCC began accepting comments on line. Some proceedings attract tens of thousands of submissions; a few have exceeded a million. Many of these are brief and repetitive, often copied verbatim by the thousands from advocacy websites. But the FCC staff still has to sort through them all, which takes time.
-As the spectrum becomes more crowded, proposals for new radio technologies routinely meet opposition. Some of this comes from competitors. Some comes from spectrum users concerned about interference to their operations, or who just don’t want other people on or near their frequencies. These last oppositions tend not to be well founded, but again, they require time and attention from the FCC.
-Even after the FCC issues an R&O, most rulemaking proceedings still stagger on, zombie-like. Losing opponents have the right to seek reconsideration at the FCC, and often do, adding another two or three years. Often parties will seek reconsideration of a reconsideration decision; each cycle usually runs more slowly than the ones before. After reconsideration, or instead of it, opponents can petition for review by the courts – an additional one to two years. Requests for reconsiderations and court appeals normally do not stop the challenged rules from taking effect and in the end they rarely change the outcome, but their pendency can still discourage investors and cause anxiety among potential buyers.
Perhaps the longest-running example of a technical rulemaking in recent years was the FCC’s proposal to authorize ultra-wideband (an extremely low-power signal that spans a very wide swath of spectrum). Vehement opposition came from every nearly organized group of spectrum users, each of which said: Not on my frequencies! From the FCC’s initial Notice of Inquiry, through the NPRM to the R&O, took four years. There followed three separate reconsideration cycles – here, here, and here – that took another eight years. The technology never became as widespread as its proponents had hoped. A never-resolved standards dispute was doubtless a factor. But the 12 years it took to finalize the rules also probably deterred manufacturers and investors alike.
Some of the procedural steps that prolong rulemakings stem from the APA (and opponents taking every advantage of the APA), which the FCC is powerless to change. While the suggestions below might shave a few months off a typical rulemaking, there is not much more that the FCC or proponents can do to accelerate this approach.
Waive the rules to permit the new technology
When its new technology is barred by one or another FCC rule, the proponent can ask that the rule(s) be waived. An FCC waiver acknowledges that a device does not comply with the rules, but declares the device to be eligible for authorization anyway. Typically a waiver involves a one-off situation that meets three conditions: the device will benefit the public, will cause no more interference than a compliant device, and cannot be constructed in accordance with the rules. In some circumstances this path can lead to FCC approval more quickly than the rulemaking approach.
One example is the so-called “millimeter wave” body scanner familiar to U.S. air travelers. The device directs radio waves toward the person in the chamber, picks up the reflections, and processes them into an image. (The power is so low that the passenger being scanned receives less radio energy than someone sitting in front of a laptop.)
The FCC has long allowed low-power unlicensed operation in the body scanners’ frequency band. Rules for that band specify maximum emissions calculated to prevent harmful interference to licensed users in the band. The rules also specify methods for measuring the emissions (here and here). But using those methods to measure the body-scanner’s signal does not make much sense, because the signal is very different from that of a conventional low-power radio. If the body scanner were tested according to the rules, it would fail to meet FCC specifications, but the scanner’s signal properties (together with its normal mode and location of operation) nevertheless make it inherently non-interfering. That, together with the high public interest in the device, prompted the FCC to issue a waiver.
Neither Congress nor the FCC has mandated procedures for considering waivers. In most cases the FCC publishes the request and invites comments from the public. As in rulemakings, and for similar reasons, waiver requests tend to be opposed. The process from request to grant typically takes about two years – faster than most rulemakings, but still long enough to impede innovation. Two recent waivers – to iRobot, maker of the Roomba floor cleaner, and to the Breitling watch company – took only seven and eight months, respectively. We hope the shorter times reflect a change in policies and procedures, although the fact-specific nature of waiver requests make it hard to generalize. Ideally, the FCC should be able to get these grants down to a matter of weeks.
Ordinarily a waiver applies only to the company that requested it. But once a waiver is granted, other companies wishing to market a similar device can request “me-too” waivers. The FCC issues these in a few months without public comment, as in this example. The economics can seem unfair: Company A spends many thousands of dollars and waits years for a waiver, after which Company B steps in and obtains an identical waiver much more quickly for a small fraction of the cost. Sometimes patent considerations keep the technology exclusive to Company A. If not, though, a quick me-too waiver is the only way the FCC can avoid playing favorites among competitors.
In a somewhat speedier variation of the usual waiver process, the FCC may forgo public comment but grant a waiver nonetheless, if it judges the request to be non-controversial. Such a grant is informally called an “office waiver.” Here is an example which took just over a year.
Rarely, the FCC will issue a “blanket waiver” available to anyone, as it did in Paragraph 81 of this R&O allowing unlicensed wireless microphones. Another blanket waiver authorized pre-existing devices that the new rules adopted in an R&O otherwise would have disallowed. Sometimes a blanket waiver coincides with the release of an NPRM, giving the public the benefit of the proposed rules before they take effect. In 2001, the FCC proposed to authorize the high-speed forms of Wi-Fi that are commonplace today (Wi-Fi “g” and above), and also allowed companies to market the proposed devices at reduced power while the rulemaking ran its course. Wi-Fi “g” products appeared in stores just a few weeks after release of the waiver order; the revised rule did not take effect for another 14 months.
Interpret the rules to accommodate the new technology
Occasionally a party can persuade the FCC to interpret a rule so as to allow a device that a more literal reading might prohibit. The proponent (usually with counsel) asks for the interpretation by conferring or corresponding directly with the appropriate FCC staff. The staff acts by sending a letter to the requesting party. These decisions are not subject to public comment and the letter is not published – a much-favored outcome because it leaves competitors in the dark. The FCC takes this action only when it is confident other spectrum users will not be affected.
Because any real example would violate client confidentiality, this one is fictitious. The FCC limits a particular category of unlicensed devices to indoor operation, relying on the building walls to help limit interference outside the building. Suppose someone wanted to operate these devices in stadiums to keep attendees updated on game statistics. In an unroofed venue, this could be said to be prohibited outdoor operation. But the FCC might be persuaded that the stadium structure would provide the same or better interference protection as the walls of a building, and on appropriate request, interpret the rule to allow stadium use.
An office waiver, mentioned above, is similar in process and outcome to a rule interpretation, except that the FCC releases its decision to the public. Sometimes a party will request a rule interpretation and be offered an office waiver instead.
Speeding up the outcome
What can a proponent do to get its innovative technology through these processes more quickly?
The fastest approval always comes with a compliant device. It’s well worth taking the trouble to make one, if at all possible. Paying engineers is a lot faster and cheaper than retaining lawyers.
If compliance is not feasible, the design engineers can still help to shorten the approval time with these measures:
-Avoid frequency bands used for critical applications.
-Avoid frequency bands likely to incur well-organized opposition.
-Use a modulation that is inconspicuous to other band occupants.
-Keep the power and duty cycle low.
-Minimize out-of-band emissions, especially into critical bands.
-Associate the technology with applications having high public interest.
-Comply with as many relevant FCC rules as possible.
What can the FCC do to get its processes moving more quickly?
The most obvious way to quickly accommodate new technologies – accelerating the rulemaking process – is a lost cause. Although the suggestions below will help, the real problem is the layering-on of legal requirements by the courts, calling for lengthy, complicated NPRMs and R&Os. In principle Congress could fix the problem by amending the APA, but in practice that will not happen any time soon.
Here are a few alternatives.
First, the FCC can better accommodate innovation through more and faster use of waivers. If a new-technology waiver request looks plausible on its face, it should presumptively qualify for a grant, with the burden on opponents to show why it would cause harm. (A statute arguably requires this approach.) Blanket waivers can be a faster alternative to new rules, in situations where they don’t create an unlawful end-run around the APA requirements. When a rulemaking on equipment requirements is unavoidable, the FCC should routinely ease the delays with a blanket waiver pending the outcome.
Second, the FCC can make more and better use of rule interpretations. In addition to the private letter rulings it occasionally issues now, the FCC can interpret rules by order or public notice, thus making the benefits available to everyone. The APA allows this approach by specifically exempting “interpretative rules“ from prior notice and public comment. These are appropriate in cases where technology has overtaken the rules, and an interpretation that allows the new technology poses no realistic risk of harmful interference. A party that disagrees still has recourse to a reconsideration proceeding or a court appeal.
Third: A technical rulemaking usually specifies testing procedures to assess whether a device complies with the new rules. In some, as here, test procedures become the central focus. Many waivers (and interpretations) likewise need new test procedures, but ordinarily the development of these procedures for a particular waiver does not start until after the waiver is granted. Compliance testing and ultimate approval must then await the procedures, which can add another three to six months. Instead, the FCC should routinely develop the test procedures, and then allow testing to go forward, in parallel with the drafting and review of the waiver grant. The happy result would be approval of the device for marketing just a day or two after release of the waiver.
Finally, the FCC can speed up its review of comments, especially in heavily subscribed proceedings, with a public notice that announces, once and for all:
The Commission will disregard submissions which are moot, irrelevant, repetitive, frivolous, utterly lacking in support, or which plainly do not warrant consideration.
(We cribbed some of the language from a different rule.) This will not prevent the filing of pointless submissions, but it will tell their authors they are wasting their time. By letting the FCC toss the sometimes thousands of filings that do not make a substantive contribution, the policy should help it to reach decisions more quickly.
The FCC also needs a way to weed out the many oppositions centered on baseless claims that a new technology will cause interference. These include a large fraction of waiver oppositions. Typically such oppositions read like this: “The waiver, if granted, would cause widespread and unacceptable interference to our operations.” They rarely include any technical support and are often hopelessly implausible. (Some have alleged interference from fractional-watt devices hundreds of miles away.)
The best way for the FCC to discourage such filings is to insist on the inclusion of a “link budget.” This is a calculation used by radio engineers to predict the signal strength at a receiver from a given transmitter. It takes into account the transmitter power, properties of the transmit and receive antennas, the distance between them, effects of the chosen frequency, losses in antenna cables, attenuation due to intervening atmospheric conditions, terrain, or ground clutter, and any other relevant considerations. The FCC should announce:
In rulemaking and waiver proceedings, the Commission will disregard any allegation or prediction of harmful interference from another party’s operations unless accompanied by either (a) evidence of actual harmful interference or (b) a realistic link budget estimating power at the victim receiver, together with a plausible showing as to why this level of power will cause harmful interference to the receiver.
None of the above suggestions will entail much additional work for the FCC. To the contrary, they will reduce the workload by forestalling some comments and allowing the FCC to ignore many others. Nor will these create additional burdens for parties to FCC proceedings, except for rulemaking and waiver opponents who would have to prepare link budgets – which they should be doing anyway. In practice, we expect the requirement will keep many unsupportable oppositions from reaching the FCC at all. The net effect will be to help prevent regulatory delay from blocking the launch of new products.
(FHH represented clients in all of the proceedings mentioned or linked in this post.)