FCC Proposes to Allow Conditional Sales of Certain Devices to Consumers

At its December 10 meeting, the Commission proposed to allow the conditional sale of certified radiofrequency (RF) devices to consumers before they have been approved for sale through the Commission’s equipment approval process.

Currently, the Commission’s rules allow conditional sales of RF devices only to manufacturers, wholesalers, retailers and users of industrial, scientific and medical equipment. The proposed Notice of Proposed Rulemaking (NPRM) would expand the exceptions to certified devices sold to consumers on the condition that they not be delivered until certification has been obtained.

The Commission believes that the proposed rule changes will allow manufacturers to better gauge consumer demand, prepare supply chains, and learn the extent of demand for their devices before building large quantities of them.

The proposal would only apply to certified devices, as those devices require testing and approval by 3rd party testing labs. It would continue to ban the conditional sale to consumers of devices using the Suppliers’ Declaration of Conformity (SDoC) process, as SDoC procedures have fewer protections to keep non-compliant devices off the market. The SDoC process allows manufacturers to self-certify devices, and the Commission does not maintain a list of SDoC-approved devices. The proposed rules would also not apply to devices requiring frequency coordination as well as to medical and other devices that require approval of other regulatory bodies. Nor would it apply to devices used to ensure safety of life at sea or in the air.

The proposed rules would allow the devices sold conditionally to have FCC IDs affixed thereto but also would require the boxes of devices to have a removable labels. Those labels would cover any visible FCC ID. The labels would have to contain specified language to the effect that the device cannot be displayed, operated, or offered for sale until equipment authorization has been obtained.

The proposal would cap the number of devices permitted to be sold conditionally to 4000 but would allow the Chief of the Office of Engineering & Technology to allow a greater number of devices in appropriate circumstances. The manufacturer must have a reasonable basis to believe the devices in question would be authorized within 30 days, and the devices would have to remain under the ownership of the manufacturer. The manufacturer would also have to establish a process to retrieve any devices that were not approved and would have to maintain relevant documents for 5 years.

The NPRM also asks a number of questions about avenues consumers could pursue to get refunds in the event the relevant devices were not able to be approved.

We believe the proposal, if adopted, will allow manufacturers needed flexibility to gauge the demand for, and develop, a host of new devices, particularly for 5G uses, without allowing non-compliant devises to proliferate.