Expansion of Electronic Labeling Options Out for Comment

Following Congressional directive, FCC would allow e-labeling for most devices with integrated electronic displays.

As attentive readers will recall, late last year Congress passed the E-LABEL Act (yes, that is indeed an acronym; it stands for "the Enhance Labeling, Accessing, and Branding of Electronic Licenses Act"). That Act directed the FCC to provide some means for manufacturers of radio frequency devices to meet FCC labeling requirements by using electronic labeling, or "e-labeling", rather than Last Century physical labeling. With e-labeling, FCC-required labeling information can be accessed on a device's electronic display screen, as opposed to "traditional" physical labels that are permanently affixed to the device.

Congress gave the FCC until August 26, 2015 either "to promulgate regulations or take other appropriate action, as necessary" to get the job done. And the FCC has apparently met that deadline by devoting a portion of its recent Notice of Proposed Rulemaking (NPRM) on equipment authorization to e-labeling matters. (My colleague Mitchell Lazarus recently reported on that NPRM.) While the rules proposed in the NPRM clearly will not be in effect by August 26, the fact that the FCC has gotten the ball rolling will probably be close enough to "other appropriate action" to satisfy the statute.

Of course, the FCC already had mechanisms in place that allowed for certain e-labeling, but Congress wanted the FCC to go further. So in the NPRM, the Commission has proposed to add a new Section 2.935 which would expand its existing e-labeling rules and fulfill Congress' mandate. This would bring into the rules a practice that the FCC has informally allowed for the past year.

Presently, Sections 2.925 and 15.212 allow electronic labeling for, respectively, software defined radios and modular transmitters subject to equipment certification. The new rule would allow any device with an "integrated electronic display" to use e-labeling to replace any label required by the Commission's rules, including, for example, FCC IDs (unique codes that identify the manufacturer and device) and consumer warnings. The requirement that some labels include the infamous FCC logo is also slated to be abolished; assuming the Commission adopts its own proposal, manufacturers will not need to worry about including the logo in e-label displays.

Note that, for these purposes, e-labeling would be permitted only through integrated electronic displays. E-labeling through other electronic mechanisms, such as RFID tags and quick response (QR) codes, or the use of accessories, plug-ins or special software, would not be allowed. Any device that does not have a screen, even if it communicates with a device that does, would have to stick with traditional physical labels. And, of course, any manufacturer that would prefer to stick with physical labels rather than e-labels may do so.

The Commission's focus is on ensuring that access to electronic labels will be "ready and intuitive" for users. The display screen must be large enough to make the label readable (no magnifying glass required, thank you), and no more than three menu steps can be required for users to get to the label. Clear information on how to access the e-label will have to be made prominently available at the time of purchase and also on any website displaying the product.

While e-labels would eliminate the need for permanent physical labels on the device itself, the new rule would still require that physical labels be displayed - on product packaging or on a removable label affixed to the device - at the time of importation, marketing and sale. That way the information will be available when the devices are in packages and the screens aren't accessible.

The NPRM also suggests an additional modification to the labeling rules for those devices too small to be labeled with an FCC ID. The FCC defines "too small" as not being able to hold a "readable" FCC ID; the FCC deems a label to be "readable" if its font size is at least four points. (Whether any text in four-point type is in fact "readable" by normal humans is far from clear. Try it yourself: create a document in standard type size - say, 12 points - and then reduce it to four points. See what we mean?) If there is no room on the device for a four-point FCC ID, the FCC ID must instead go in the user manual and also either on the device packaging or on a removable label attached to the device. As to required labeling other than the FCC ID, long-standing practice remains unchanged: if the available area on the device is smaller than the palm of the hand, it is considered too small for a label, in which case the manufacturer can place the same information in the user manual or product packaging.

While comment deadlines have not yet been officially announced, we expect them to be very soon. Check back here for updates.