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Federal Register / Vol. 86, No. 158 / Thursday, August 19, 2021 / Proposed Rules
authorizes the Commission to, consistent with the public interest, convenience, and necessity, make reasonable regulations . . . governing the interference potential of devices which in their operation are capable of emitting radio frequency energy by radiation, conduction, or other means in sufficient degree to cause harmful interference to radio communications.
47 U.S.C. 302a1. Regulations that the Commission adopts in implementing that authority shall be applicable to the manufacture, import, sale, offer for sale, or shipment of such devices and . . . to the use of such devices. 47 U.S.C.
302a2. The authorization processes are primarily for the purpose of evaluating equipments compliance with technical specifications intended to minimize the interference potential of devices that emit RF energy. As noted above, however, these rules are also designed to implement other statutory responsibilities. The Commission seeks comment on the scope of the authority to rely on such rules to effectuate other public interest responsibilities, including the Commissions section 303e authority to regulate the kind of apparatus to be used with respect to its external effects. 47 U.S.C. 303e.
Does Congresss inclusion of the phrase to be used, rather than used, give the Commission authority to prevent the marketing and sale of equipment in addition to preventing licensees and others from using such equipment?
Alternatively, does the public interest phrase in section 302 itself provide independent authority to deny equipment authorization to equipment deemed to pose an unacceptable security risk? Section 302a directs the Commission to make reasonable regulations consistent with the public interest governing the interference potential of devices; it would appear to be in the public interest not to approve devices capable of emitting RF energy in sufficient degree to cause harmful interference to radio communications if such equipment has been deemed, pursuant to law, to pose an unacceptable risk to the national security of the United States or the security and safety of United States persons. The Commission seeks comment on this tentative conclusion.
The Commission also seeks comment on a potential alternative basis for such security rules. The Communications Assistance for Law Enforcement Act CALEA includes security requirements that apply directly to equipment intended for use by providers of telecommunications services. 47 U.S.C.
10011010. Section 105 requires telecommunications carriers to ensure
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that the surveillance capabilities built into their networks can be activated only in accordance with a court order or other lawful authorization and with the affirmative intervention of an individual officer or employee of the carrier acting in accordance with regulations prescribed by the Commission, 47
U.S.C. 1004 and the Commission has concluded that its rule prohibiting the use of equipment produced or provided by any company posing a national security threat implements that provision. Supply Chain First Report and Order, 34 FCC Rcd at 1143637, paras. 3536. The Commission is required to prescribe rules necessary to implement CALEAs requirements. 47
U.S.C. 229. Would rules prohibiting authorization of equipment on the Covered List, or that otherwise poses security risks, be justified as implementation of CALEA?
As noted above, the Commission believes it has ancillary authority under section 4i of the Act to adopt these revisions to its part 2 rules as reasonably necessary to the effective enforcement of the Secure Networks Act. The Commission also tentatively concludes that such rules would be consistent with the Commissions specific statutorily mandated responsibilities under the Communications Act to make reasonable regulations consistent with the public interest governing the interference potential of electronic devices, to protect consumers through the oversight of common carriers under Title II of that Act, and to prescribe the nature of services to be rendered by radio licensees under section 303b of that Act. The Commission seeks comment on this reasoning as well. The Commission also seeks comment on any other sources of authority for the Commission proposed rules.
e. Cost-Effectiveness Analysis The Commissions proposed revisions to the equipment authorization rules and processes to prohibit authorization of any covered equipment on the Covered List would apply only to equipment that has been determined by other agencies to pose an unacceptable risk to national security. The Commission has already concluded that it has no discretion to disregard determinations from these sources, which are enumerated in section 1.50002b of its rules. Hence, the Commission accepts the determination of these expert agencies.
Because the Commission has no discretion to ignore these determinations, the Commission believes that a conventional cost-benefit analysiswhich would seek to
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determine whether the costs of the proposed actions exceed their benefits is not directly called for. Instead, the Commission will consider whether the proposed actions would be a costeffective means to prevent this dangerous equipment from being introduced into the nations communications networks.
The Commission therefore seeks comment on the cost-effectiveness of the proposed revisions to the rules and procedures associated with the Commissions equipment authorization rules under part 2. Do the Commissions proposed rules promote the goals of ensuring that the national security interests are adequately protected from equipment on the Covered List, while simultaneously continuing the mission of making communications services available to all Americans? Are there alternative approaches that would achieve this goal in a more cost-effective manner?
2. Devices Exempt From the Requirement of an Equipment Authorization Background. Under the Commissions rules, certain types of RF devices are exempt from demonstrating compliance under one of the equipment authorization procedures either certification or SDoC. This exemption applies to specified digital devices in several types of products, including many part 15 devices including incidental and unintentional radiators because they generate such low levels of RF emission that they have virtually no potential for interfering with authorized radio services. Revision of Part 15 of the Rules Regarding the Operation of Radio Frequency Devices without an Individual License, GN Docket No. 87
389, Notice of Proposed Rulemaking, 2
FCC Rcd 6135, 6140, para. 39 1987. In other services, the Commission has determined that because operators must be individually licensed and responsible for their stations e.g., Amateur Radio Service or the type of operation poses low risk of harmful interference, such an exemption is warranted. See, e.g., 47 CFR 97.315.
Exempt devices are required to comply with general conditions of operation, including the requirement that if an exempt device causes interference to other radio services the operator of that device must cease operating the device upon notification from the Commission and must remedy the interference. See 47 CFR 15.5.
The most diverse set of exempted devices operate under the part 15
unlicensed device rules. The categories of part 15 exempt devices include
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