FCC Fine-Tunes Experimental Licensing Rules

New changes affect radio astronomy frequencies, emergency service providers, and medical telemetry bands, among others.

It doesn't matter if you're a technology titan, a two-man start-up in a garage, or a spare-time basement tinkerer. You can make your radio tests legal with an FCC experimental license. The cost is not high - $65 for two years of authorization - and you'll sleep better knowing you're operating within the law.

Congress has long required the FCC to "provide for experimental uses of frequencies." The FCC does this in part by maintaining an experimental licensing program that lets innovators try out new technologies using equipment that may not comply with the FCC technical rules, in frequency bands in which the users might not otherwise be qualified to operate. An experimental license comes with safeguards and controls. With respect to "conventional" experimental licenses - the only kind available until recently - these safeguards include a careful review, by the FCC's technical staff, of the proposed operational details, to ensure there will be no harmful interference to other users. If the requested authorization encroaches on frequencies used by the federal government, that review includes similar scrutiny by federal spectrum officials. Despite these hurdles, most requests for these licenses are routinely approved within a few weeks.

Early in 2013, the FCC added three new categories of experimental licenses, while also keeping the decades-old "conventional" category. The newcomers are:

• Program Experimental Licenses, available to: colleges or universities that offer graduate study in engineering; research laboratories; hospitals and health care institutions; and manufacturers that make radio devices or incorporate them into products;
• Medical Testing Licenses, primarily for health facilities conducting clinical trials; and
• Compliance Testing Licenses, for commercial test labs that make a business of assessing a device's compliance with FCC technical rules.

The 2013 rules also slightly loosened the stringent restrictions on market trials of equipment not yet shown to comply with the technical rules.

Three parties sought reconsideration of various aspects of the new rules. The FCC has now responded.

One petition, filed by our friend Michael Marcus, concerned frequency bands allocated to the "passive" services such as radio astronomy and Earth exploration satellite services. The pre-2013 rules allowed experimental licensees to use these bands if okayed by the National Telecommunications and Information Administration (NTIA), which coordinates federal spectrum users. The 2013 rule change barred all experimental use of these frequencies.

But now, at Marcus's suggestion, the FCC has agreed to let both compliance-testing licensees and conventional licensees use the passive bands, subject to FCC and NTIA oversight. This may pose problems, at least insofar as use by conventional licensees is concerned.

Use of these bands for compliance testing is necessary, as the labs must check whether the emissions from candidate devices meet the regulatory limits in these bands. But we question whether it's a good idea to allow conventional licensees to operate in these bands. Radio astronomers do important scientific work using the most sensitive radio receivers on the planet; increasing the number of potential users in this band can potentially increase the risk of additional interference. If those potential users do not have to operate in these bands, why not continue to keep them out as a precautionary matter? Several recent FCC actions that have already threatened interference to radio astronomy, such as this one from just a few months ago.

Also at Marcus's suggestion, the re-amended rule includes language that should give the radio astronomers somewhat better protection than they had before 2013: a passive-band applicant must both explain why non-passive bands are unsuitable and acknowledge that long-term operations will have to transition to a non-passive band.

Responding to a petition from Medtronic, a medical device manufacturer, the FCC has agreed to allow entities that provide medical devices for clinical trials to recover costs from investigators without running afoul of the rules that prohibit "marketing" of non-approved devices. At the same time, the FCC denied Medtronic's request to broaden eligibility for medical testing licenses to include sponsors of, and investigators conducting, clinical studies. The FCC reasons that these parties would lack direct control over the radio equipment being tested.

In earlier filings, Medtronic had noted a disparity with regard to the 401-406 MHz band. This is one of roughly 40 "restricted bands" subject to special limitations because they are home to important and sensitive services - in this case, Earth exploration satellite and meteorological services. The 401-406 MHz band is also used for low-power medical telemetry. The 2013 rules reasonably allow medical testing experimental licensees to operate in the band, subject to certain restrictions, but the band is closed to program licensees, including those that might be developing medical telemetry equipment. In response to Medtronic's request, the reconsideration order includes a Further Notice of Proposed Rulemaking that seeks comment on whether to open the restricted bands to program licensees under the same restrictions that now apply to medical testing licensees. As always, you can find the comment dates here when they are announced.

Finally, satellite service providers Sirius XM and EchoStar asked for clarification of a requirement relating to program experimental use of critical service bands, i.e., those for commercial mobile services, emergency notifications, and public safety. Program licensees in these bands must take certain precautions, and must give advance notice to potentially affected critical service licensees. Sirius XM and EchoStar wanted the rules to specify that, for purposes of these requirements, the universe of critical service providers entitled to notice includes all participants in the Emergency Alert System. The FCC has now amended the rule accordingly.

The experimental licensing program has been a huge success for decades. Our clients that develop new kinds of equipment routinely apply for these licenses to try out ideas both in the laboratory and in the field. We expect the 2013 rule expansion and the fine-tuning in the reconsideration order to make the program attractive to more users, and look forward to seeing the new technologies, devices, and services that result.