Streamlining the Equipment Authorization Process; Implementation of Mutual Recognition Agreements and the GMPCS MOU

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 0, 2, 15, 25, and 68

[GEN Docket No. 98-68; FCC 98-338]

Streamlining the Equipment Authorization Process; Implementation

of Mutual Recognition Agreements and the GMPCS MOU

AGENCY: Federal Communications Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Commission is amending the rules to provide the option of

private sector approval of equipment that currently requires an

approval by the Commission. It is also adopting rule changes to

implement a Mutual Recognition Agreement (MRA) for product approvals

with the European Community (EC), the Asia Pacific Economic Cooperation

(APEC) and to allow for similar agreements with other foreign trade

partners. These actions will eliminate the need for

[[Page 4985]]

manufacturers to wait for approval from the Commission before marketing

equipment in the United States, thereby reducing the time needed to

bring a product to market. The Commission is also adopting an interim

procedure to issue equipment approvals for Global Mobile Personal

Communication by Satellite (GMPCS) terminals prior to domestic

implementation of the GMPCS-MoU Arrangements. That action will benefit

manufacturers of GMPCS terminals by allowing greater worldwide

acceptance of their products.

DATE: Effective May 3, 1999.

FOR FURTHER INFORMATION CONTACT: Hugh L. Van Tuyl, (202) 418-7506,

Office of Engineering and Technology. For part 68 specific questions,

contact Vincent M. Paladini, (202) 418-2332, Common Carrier Bureau. For

part 25 specific questions, contact Tracey Weisler at 202-418-0744.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report

and Order, GEN Docket 98-68, FCC 98-338, adopted December 17, 1998, and

released December 23, 1998. The full text of this Commission decision

is available for inspection and copying during normal business hours in

the FCC Reference Center (Room 239) 1919 M Street, N.W., Washington,

D.C., and also may be purchased from the Commission's duplication

contractor, International Transcription Service, (202) 857-3800, 1231

20th Street, N.W. Washington, D.C. 20036.

Summary of the Report and Order

1. In this order, we adopt measures to reduce the burden of the

equipment authorization program on manufacturers, ensure market access

and promote competition in the provision of telecommunication and

electronic equipment, and allow greater worldwide acceptance of GMPCS

equipment. We address the comments filed in response to our proposals

to recognize private entities to certify equipment as complying with

Commission rules. The program we adopt will be used both to streamline

our domestic equipment approval programs and satisfy the United States'

obligations to implement MRAs.

Telecommunications Certification Bodies (TCBs)

2. In the Notice of Proposed Rule Making (``NPRM'') 63 FR 31685,

June 10, 1998, we proposed to allow designated private entities to

issue equipment approvals in essentially the same manner as the

Commission. Under this proposal, private entities in the U.S. and

designated entities in other countries would certify that equipment

intended for use within the U.S. complies with Commission requirements.

We proposed that these certifying organizations be called

``Telecommunication Certification Bodies'', or TCBs, since their

purpose will be to grant certification to telecommunications equipment.

This approach would provide manufacturers with alternatives where they

could possibly obtain certification faster than with the Commission and

from a facility in a more convenient location. We also anticipated that

the TCB program would result in a reduction of applications filed with

the Commission, thus enabling the Commission to redirect resources

toward enforcement of the rules. Finally, allowing equipment to be

certified by parties in other countries is an essential step in

implementing MRAs, and using private entities for domestic

certification purposes would parallel our MRA obligations.

3. In ET Docket 97-94, we recently examined the part 2

authorization program, relaxing the authorization requirements for many

types of equipment to permit manufacturer's self-approval (verification

or DoC). We estimate that our actions in Docket 97-94 will reduce by

approximately half the number of applications required to be filed with

us. The equipment for which we relaxed the authorization requirement

includes receivers, which is the only type of equipment that was

suggested be placed under the DoC program. We determined in Docket 97-

94 that a certain ``core group'' of equipment requires a higher level

of oversight than manufacturer's self-approval, due to a high risk of

non-compliance, the potential to create significant interference to

safety and other communication services, and the need to ensure

compliance with the requirements to protect against radio frequency

exposure. Accordingly, we decline to expand further the DoC program for

equipment subject to a part 2 authorization requirement at this time.

4. Since the NPRM did not propose to place terminal equipment

subject to the part 68 registration program under DoC, the record does

not yet contain sufficient information or analysis to ensure that it

would be fair and equitable to do so. Accordingly, we decline to expand

further the DoC program to equipment subject to part 68 registration at

this time. We may, however, consider this possibility in the context of

future proceedings where we may more fully investigate and resolve the

relevant issues.

5. By carefully specifying the qualification criteria for TCBs, as

well as exerting the proper oversight, we intend to ensure the TCB

system will be as fair and impartial as the current system. The TCB

system also may be significantly faster than the Commission's current

system, since manufacturers should have more than one approval body to

choose from and can select one with a shorter processing time. We

expect TCBs to function much like the Commission by certifying a

product based on the test results of one representative sample.

Further, competition among TCBs, as well as expectations of

manufacturers, should encourage TCBs to process applications quickly

and at reasonable expense. TCBs should provide conveniently located

expertise and ``one stop shopping'' for manufacturers, thereby

eliminating the uncertainty and delay in assembling and forwarding

applications to the Commission inherent in the current system. We also

recognize and agree with commenters that the integrity of the TCB

program must be based on our ability to enforce our rules effectively.

As we stated in the NPRM, we intend to redirect resources toward

enforcement of the rules. Further, we intend to review and revise our

rules and procedures, as necessary, to ensure that we fulfill our

responsibilities to ensure credible rule enforcement. We recognize that

there will be initial start-up problems and we plan to work with

industry and the National Institute of Standards and Technology (NIST)

to facilitate the training and implementation of TCBs. Accordingly, we

find it is in the public interest to adopt the TCB system as proposed

in the NPRM, for equipment authorized under both parts 2 and 68 of our

rules.

TCB Qualification Criteria

6. In the NPRM, we tentatively concluded that the International

Organization for Standardization (ISO) / International Electrotechnical

Commission (IEC) Guide 65 (1996), General requirements for bodies

operating product certification systems (``Guide 65''), sets forth the

requirements that must be used to establish the primary qualification

criteria for TCBs. TCB equipment certification would be based on type

testing, which is the option listed in subclause 1.2(a) of Guide 65. We

also proposed that TCBs:

Demonstrate expert knowledge of the regulations for each

product with respect to which the body seeks designation, including

knowledge of all applicable technical regulations, administrative

provisions or requirements, as well as the relevant policies and

procedures.

[[Page 4986]]

Be accredited in accordance with ISO/IEC Guide 25, General

Requirements for the Competence of Calibration and Testing Laboratories

(``Guide 25''), in order to demonstrate that they are competent to

perform testing of the products they will certify.

Have the ability to recognize when interpretations of the

rules or test procedures are necessary and demonstrate a knowledge of

how to obtain current and correct interpretations.

Participate in consultative activities identified by the

Commission to establish a common understanding and interpretation of

the regulations.

7. We find that Guide 65, an existing international standard,

establishes appropriate qualifications for product certifiers. Guide 65

will be used as the primary qualification criteria for TCBs under MRAs,

so use of this document for domestic purposes as well will facilitate

acceptance of U.S. certifications internationally, and thereby promote

U.S. trade abroad. We also find that TCBs should have the expertise and

capability to test equipment they certify, since they will either

perform measurements themselves or will use this expertise and

capability to correctly review test data from other parties and perform

audit testing as required. Thus, we also find that TCBs must be

accredited to Guide 25 to demonstrate appropriate knowledge and

capability to perform product testing. Accordingly, we require TCBs to

be both Guide 65 and 25 accredited.

8. CCL requests that the Commission recognize current accreditation

schemes for testing laboratories, such as the National Voluntary

Laboratory Accreditation Program (NVLAP) and the American Association

for Laboratory Accreditation (A2LA). Laboratories that perform testing

of equipment approved under DoC must be accredited through NVLAP, A2LA

or other parties recognized by the Commission, see 47 CFR 2.948(d).

These accreditations are based on Guide 25 and cover testing of certain

devices subject to part 15 of the rules. We find that these

accreditations would satisfy our requirement for a TCB to be Guide 25

accredited. Accordingly, a prospective TCB which is already accredited

by A2LA, NVLAP or another recognized party, based on Guide 25, will not

have to obtain another Guide 25 accreditation, provided the equipment

it certifies is covered by the scope of the accreditation.

9. We also adopt the additional qualification criteria that we

proposed, i.e., TCBs must demonstrate expert knowledge of the

regulations for each product with respect to which they seek

designation; recognize when interpretations of the rules or test

procedures are necessary and demonstrate knowledge of how to obtain

current and correct interpretations; and participate in consultative

activities identified by the Commission to establish a common

understanding and interpretation of the regulations. The MRAs, for

example, identify regulations and requirements that are applicable to

certifying equipment intended for import into the United

States.1 Since such regulations and requirements may be

modified in the future, we delegate authority to the Chief, Office of

Engineering and Technology (OET), and to the Chief, Common Carrier

Bureau (CCB), to identify specific regulations and requirements for

which TCBs certifying equipment for use within the United States shall

demonstrate expert knowledge. Both OET and CCB shall provide public

notice of the specific regulations and requirements identified for this

purpose, to ensure that prospective TCBs will know for which specific

regulations and requirements they must demonstrate expert knowledge as

required under our qualifying criteria.

---------------------------------------------------------------------------

\1\ The US/EC MRA contains a non-exclusive list for

telecommunications equipment. The model APEC MRA provides that

countries will identify the relevant regulations and requirements at

the time they enter into bilateral agreements.

---------------------------------------------------------------------------

10. Subcontractors. Several parties address the issue of whether

subcontractors to TCBs (e.g., test laboratories) should also be Guide

25 accredited. Under Guide 65, a TCB may use a subcontractor to perform

certain tasks (e.g., testing or inspection).2 Guide 65

further states that a TCB shall take full responsibility for

subcontracted work, and shall ``ensure that the subcontracted body or

person is competent and complies with the applicable provisions of

[Guide 65] and other standards and guides relevant to testing,

inspection or other technical activities.'' Thus, TCBs must ensure that

subcontractors, which perform their work under the direction of, and

generally with compensation from, the TCB, are competent and in

compliance. We do not interpret Guide 65 as requiring subcontractors to

be Guide 25 accredited. We expect that as a result of our requirement

that TCBs must be accredited to Guides 65 and 25, TCBs will have the

expertise to determine whether a manufacturer or independent laboratory

that is a subcontractor is competent to correctly measure the equipment

being tested. We will allow TCBs to use any reasonable means, including

requiring Guide 25 accreditation, to determine whether a subcontractor

is competent and in compliance with relevant standards or guidelines.

---------------------------------------------------------------------------

\2\ See Guide 65, clause 4.4. Although a TCB might use a

subcontractor to perform certain tasks related to the certification

process, a TCB is precluded by Guide 65 from delegating to a third

party, such as a subcontractor, any authority for granting

certifications. See Guide 65, clauses 4.4(a) and 12.2.

---------------------------------------------------------------------------

11. Manufacturers. Retlif, Rockwell and Kenwood request that the

Commission confirm that a manufacturer can be a TCB, provided it meets

the Guide 65 requirement for impartiality. ACIL, CCL and Intertek want

the Commission to provide a clear definition of ``independence'' for

TCBs, and propose a definition based on the language in European

Directives, which would exclude manufacturers from being TCBs.

12. Guide 65 clearly requires that the certifying body be

impartial. More specifically, clause 4.2 of Guide 65 requires that the

certifying body ``not supply or design products of the type it

certifies,'' nor ``provide any product or service which could

compromise the confidentiality, objectivity or impartiality of the

certification process and decisions.'' We interpret these guidelines to

effectively preclude manufacturers from becoming TCBs. Thus, we do not

find it necessary to adopt a specific definition of independence in

order to preclude manufacturers from TCB designation. On the other

hand, we find Guide 65 less restrictive regarding subcontractors.

Clause 4.4 of Guide 65 states that the certifying body is to ensure

that the subcontractor ``is not involved either directly or through the

person's employer with the design or production of the product in such

a way that impartiality would be compromised.'' Thus, manufacturers

satisfying the conditions of clause 4.4 of Guide 65 could be used as

subcontractors, provided the TCB is satisfied that its own impartiality

would not be compromised. Since the TCB is the party whose impartiality

must be maintained, the TCB is in the best position to determine

whether the use of a particular subcontractor would in any way

jeopardize that requirement. We expect, nonetheless, that a

manufacturer would not be used as a subcontractor to test its own

products or similar products made by a competing manufacturer.

Designation Procedure

13. The NPRM proposed that TCBs be accredited by NIST under its

National Voluntary Conformity Assessment System Evaluation (NVCASE)

program. In accordance with our proposal, we

[[Page 4987]]

designate NIST as the entity with primary responsibility for

accrediting TCBs. NIST may directly accredit TCBs or may, in

consultation with the Commission, designate additional accreditation

bodies who will, in turn, accredit TCBs. We will work directly with

NIST to develop the many administrative details of the criteria and

processes for accreditation of TCBs. The Commission will identify for

NIST, for example, the specific types of tests that need to be done for

telecommunications equipment and the types of measurements that should

be done to demonstrate compliance with our rules; identify processes

that TCBs will use to obtain current and correct interpretations of

rules or test procedures; and identify consultative activities

requiring TCB participation. The Commission will provide public notice

of the methods that NIST will use to accredit TCBs consistent with the

qualification criteria adopted herein.

14. We will designate as a TCB any organization that meets the

qualification criteria and is accredited by NIST or its recognized

accreditor. An organization may seek accreditation and designation as a

TCB for all or only some equipment requiring authorization under parts

2 and 68. The Commission will issue a public notice listing each

accredited entity that it designates as a TCB and maintain a current

list of all designated TCBs. We will not limit the number of TCBs that

will be designated, nor will we limit the time period during which an

organization must be accredited and designated. We will not require

periodic renewals of a TCB designation, but we note that under

international standards, accreditations are only valid for a specific

number of years. The Commission will withdraw the designation of a TCB

if the TCB's accreditation by NIST or its recognized accreditor is

withdrawn or expires, if the Commission otherwise determines there is

just cause for withdrawing the designation, or if the TCB requests that

it no longer hold the designation. The Commission will provide a TCB

with 30 days notice of its intention to withdraw TCB designation and

provide the TCB with an opportunity to respond. Withdrawal of

designation will be announced by public notice.

15. There are many details of the qualification and accreditation

process that remain to be worked out between the Commission and NIST.

Therefore, we delegate authority to the Chief, OET and the Chief, CCB

to identify the specific methods that will be used by NIST to accredit

TCBs, consistent with the qualification criteria adopted herein, and to

enter into a memorandum of understanding with NIST on the accreditation

process for TCBs. We also delegate authority to the Chief, OET and the

Chief, CCB to designate and withdraw the designation of TCBs,

consistent with the terms of this Report and Order.

Implementation Matters

16. In the NPRM, we proposed to allow TCBs to certify equipment

under parts 2 and 68 of our rules, performing the same application

processing functions as used by the Commission. In particular, the

following requirements were proposed for TCBs.

(a) Certification must be based on the submittal to the TCB of an

application that contains all the information required under the

Commission's rules.

(b) TCBs will be required to issue a written grant of

certification.

(c) The grantee of certification will remain the party responsible

to the Commission for compliance of the product.

(d) The type testing as defined in Guide 65 should normally be done

on only one unmodified sample of the equipment for which approval is

sought.

(e) There is no restriction on the fees that TCBs may charge for

certification.

(f) TCBs may either perform the required compliance testing

themselves, or may accept and review the test data from manufacturers

or other laboratories. TCBs may also subcontract with others to perform

the testing. However, the TCB remains responsible for ensuring that the

tests were performed as required and in this regard TCBs are expected

to perform periodic audits to ensure that the data they may receive

from others is indeed reliable.

(g) Equipment certified by a TCB must meet all the Commission's

labelling requirements, including the use of an FCC Identifier.

(h) TCBs must submit an electronic copy of each granted application

to the Commission using the new electronic filing system for equipment

authorization applications. This will allow us to easily verify whether

a piece of equipment has been approved without having to locate the TCB

which approved it and obtain the records. It will also allow us to

monitor the activities of the TCBs to determine how many approvals are

issued and for what types of equipment. Finally, this would create a

common database that all parties can use to verify approvals and obtain

copies of applications. Where appropriate, the file should be

accompanied by a request for confidentiality for any material that

qualifies as trade secrets.

(i) TCBs may approve requests for permissive changes to certified

equipment, irrespective of who originally certified the equipment.

(j) TCBs must periodically perform audits of equipment on the

market that they have certified to ensure continued compliance.

17. In the NPRM, we tentatively concluded that some functions not

be performed by TCBs but, rather, by the Commission. In particular, we

tentatively concluded that TCBs not grant waivers of Commission rules

and regulations; not certify new or unique equipment for which

Commission rules or requirements do not exist or for which application

of the rules or requirements is not clear; not take enforcement action

but rather report rule violations to the Commission; and not grant

transfers of control or assignments of certifications. Finally, we

proposed that any action of a TCB be subject to review by the

Commission.

18. Commenters were generally supportive of the implementation

requirements. Some specific concerns were expressed. In light of the

comments, we adopt these requirements as modified and clarified below.

19. Scope of responsibility. Consistent with section 302(e) of the

Communications Act, as well as the terms of the MRAs, we will use TCBs

to test and certify equipment as complying with our technical rules and

requirements. Under this authority, TCBs are to certify equipment in

accordance with Commission rules and policies. It is important that

applicants are treated fairly and equitably regardless of where their

equipment is certified, since a certification granted by a TCB will be

treated the same as one issued by the Commission. In that regard,

should equipment manufacturers take issue with a TCB's decision, they

may seek Commission review of such decision. Thus, TCBs are not to

impose their own requirements, and must conform their testing and

certification processes and procedures to comply with any changes the

Commission makes in its rules and requirements. We recognize that

changes to the Commission's technical rules may require TCBs to be re-

accredited in order to continue to be qualified to test and certify

certain equipment. Finally, we anticipate that TCBs will test and

certify a broad range of equipment, and we do not intend to preclude

TCBs from certifying any class of equipment at this time. We would,

however, only designate a TCB to test and certify equipment requiring

routine evaluation for RF exposure if it demonstrates that it has the

appropriate

[[Page 4988]]

knowledge and expertise. Any concerns that TCBs may have about specific

test procedures for RF exposure will be addressed by the Office of

Engineering and Technology during the TCB program implementation.

20. Although we intend to use TCBs to certify a broad range of

equipment, we find that certain functions regarding certifying

equipment should continue to be performed by the Commission.

Specifically, TCBs will not be permitted to waive the rules, nor to

certify new or unique equipment for which Commission rules or

requirements do not exist or for which application of the rules or

requirements is not clear. The Commission in the first instance will

determine whether and under what conditions rules may be waived, and

provide interpretations of novel issues concerning the Commission's

technical standards, testing requirements or certification procedures.

We expect that in many instances the Commission's decisions can provide

adequate guidance to TCBs to allow them to certify equipment that is

similarly situated. In some instances, the Commission may have to

develop new rules. We find that by reserving for the Commission all

waiver requests and new and novel rule applications and

interpretations, we can ensure that all TCBs will certify equipment in

a uniform manner, consistent with Commission policies.

21. We also conclude that TCBs should not take any enforcement

actions, but rather report apparent violations of rules to the

Commission. Enforcement actions that the Commission may undertake

include, for example, revocation of an authorization and imposing a

fine and forfeiture. Neither section 302(e) of the Communications Act

of 1934, as amended, nor the MRAs contemplate using TCBs as enforcement

agents. Moreover, the Commission has specific statutory obligations

that it must satisfy in this area.3

---------------------------------------------------------------------------

\3\ See, e.g., Title V of the Communications Act.

---------------------------------------------------------------------------

22. We will not permit TCBs to authorize transfers of control of

part 2 grants of certification, however, because the Commission's rule

on these transfers requires that we make a determination on a case-by-

case basis as to whether new equipment authorization applications are

required.4 We will continue to perform that function to

ensure that the rule is applied in a consistent manner. We determine,

however, that TCBs may authorize transfers of part 68 certifications.

Commission approval of such transfers is not required, although the

Commission requires notification of such transfers.5 We

intend to develop an electronic filing system to accommodate part 68.

We expect that the electronic filing system will permit TCBs to notify

the Commission of transfers of control. In the interim, we will accept

part 68 transfers of control by utilizing the same means of

communication we employ during the TCB program implementation

period.6

---------------------------------------------------------------------------

\4\ See 47 CFR 2.929(d).

\5\ See 47 CFR 68.214(b).

\6\ We will accept FCC form 730 for transfer of control purposes

until we have developed and implemented an electronic filing system

for part 68. We may utilize interim filing procedures as necessary

during the development and implementation of the electronic filing

system. We will provide public notice of any changes in our filing

procedures.

---------------------------------------------------------------------------

23. Written grant of certification. Several parties would like the

Commission to ensure that grants issued by TCBs are exactly equivalent

to grants issued by the FCC. ACIL, Intertek and TIA suggest that TCB-

issued grants indicate that the TCB is FCC designated, and that the FCC

publish the list of TCBs under its letterhead. Motorola and PCTEST

recommend that the FCC standardize the format of TCB grants. We find

that the first two suggestions have merit. We believe the success of

the TCB program will depend in part on our ensuring that TCB

certifications are truly equivalent to those issued by the Commission.

Accordingly, we will require a TCB grant to indicate that the TCB is

designated to grant the certification, citing the source of authority

(e.g., the rules that we are adopting in this Report and Order). We

will not require a specific format for TCB grants, but the

certification must include the same information as contained in one

issued by the Commission. We will make samples of the Commission's

format available to TCBs that wish to follow it.

24. Consistent with the Commission's rules,7 a TCB may

set aside a grant on its own motion within 30 days of the effective

date of the grant in the event of administrative errors, e.g., the

application was not complete. The TCB will be required to provide

notice of such action to the applicant and to the Commission. After the

30 day period, only the Commission may revoke a grant if, for example,

we discover misrepresentations in the application or failure of the

equipment to conform to the applicable technical standards.8

---------------------------------------------------------------------------

\7\ See 47 CFR 1.108.

\8\ See 47 CFR 2.939(a).

---------------------------------------------------------------------------

25. Unmodified sample for type testing. Curtis-Strauss requests

clarification on what constitutes an ``unmodified'' sample for testing.

Curtis-Strauss points out that manufacturers often apply for

certification during product development, and product modifications are

often needed for compliance. In proposing this requirement, we intended

that TCBs use the same standards that we currently use in certifying

equipment (i.e., the sample of the equipment for which certification is

being obtained must be representative of what will actually be

marketed). In the event modifications to a sample are required during

compliance testing 9 to make a product comply with the

standards, those modifications must be incorporated into the finished

marketed product.10

---------------------------------------------------------------------------

\9\ ``Compliance testing'' and ``type testing'' mean the same

thing.

\10\ See 47 CFR 2.907(b) (equipment marketed by a grantee must

be identical to the sample tested).

---------------------------------------------------------------------------

26. Test data. Some commenters express concern that TCBs will not

accept test data from manufacturers or independent labs, preferring

instead to conduct compliance testing themselves. Under the

Commission's current certification process, manufacturers and

independent laboratories may test products and submit applications to

the Commission for certification. Under the TCB system we are adopting,

manufacturers and independent labs may continue to test products as

they do now, except applications can be submitted to a TCB rather than

the Commission.11 Thus, a manufacturer or a test lab does

not have to be a subcontractor in order to test products and submit

applications to a TCB. We agree with Motorola that a TCB will want a

manufacturer to demonstrate a basis for confidence in the

manufacturer's test procedures and results. Consistent with our

decision regarding subcontractor's competence, a TCB can establish

confidence in a manufacturer's or independent lab's test results by any

reasonable means, but we will not require accreditation of the test lab

under Guide 25. We expect that a TCB will examine a test report for

completeness of data and documentation; notify applicants in writing of

any deficiencies in the test report; request additional information to

address the deficiencies; and not retest or duplicate testing for minor

equipment changes that do not affect compliance with technical

requirements. Our oversight of TCBs should identify any abusive

practices concerning the acceptance of test data.

---------------------------------------------------------------------------

\11\ A TCB is required to make its services available to all

applicants. See clause 4.1.2 of Guide 65.

---------------------------------------------------------------------------

27. Common Database of Certified Equipment. We conclude that it is

necessary to maintain a common

[[Page 4989]]

database of certified equipment by having all TCBs send an electronic

copy of each granted application, including the certification the TCB

issued, to the Commission using the electronic filing system for part 2

applications. As we explained in the NPRM, a common database will allow

the Commission to verify whether a piece of equipment was approved

without having to locate the TCB that approved it and obtaining their

records; to monitor the activities of TCBs to determine how many

approvals are issued and for what types of equipment; and to provide

one location which all parties can use to verify approvals and obtain

copies of applications. However, requiring submission of a copy of the

complete application to the database, including all the photographs,

user manuals and test reports would be an unnecessary burden on TCBs.

We will only require submission of the application Form 731 and an

electronic copy of the TCB's grant of equipment authorization. In the

event we need additional information about a particular piece of

equipment, we can obtain it from the TCB. We are amending our rules to

require TCBs to provide a copy of the application file within 30 days

of a request by the Commission, or to provide an explanation as to why

the file cannot be provided. Where appropriate, the TCB will provide a

copy of any request for confidentiality for any material in the

application file that qualifies as trade secrets, to ensure appropriate

handling. OET will notify TCBs of the specific information it will need

about a TCB grant and in what electronic format it should be provided.

28. We recognize that we have not yet developed an electronic

filing system to accommodate part 68, but intend to do so in the

future. We will utilize conventional means for collecting information

in the interim.12 We will authorize submission of part 68

certification information into a common database, and describe the

information that must be filed for part 68 purposes, after we have

developed an electronic filing system to accommodate that information.

---------------------------------------------------------------------------

\12\ We will accept FCC form 730 during the development and

implementation of the electronic filing system.

---------------------------------------------------------------------------

29. Surveillance Activities. ISO/IEC Guide 65 requires TCBs to

perform surveillance on products they have approved. It does not

specify the number or percentage of products that need to be examined.

The Commission will continue to perform its own surveillance of

products on the market, by periodically conducting random product

testing as well as by investigating allegations of non-compliance.

However, we find that surveillance is an appropriate activity for TCBs

to supplement the Commission's efforts. Under clause 13 of Guide 65, a

TCB is obligated to ensure that products that it has certified continue

to comply with Commission requirements, particularly after a

manufacturer notifies a TCB that the product has been modified. We will

not specify a specific number or percentage of products that a TCB

should test to satisfy this guideline, since our experience has shown

that different levels of scrutiny are required for different products

to ensure compliance.13 We will rely on TCBs to use their

judgment in complying with this guideline. In addition, we may

periodically require a TCB to test for continued compliance certain

types of products that the TCB certified and which are already being

marketed (post-market surveillance). We do not view post-market

surveillance by TCBs as an abdication of our enforcement

responsibilities, since the TCB will report apparent violations to the

Commission and not take action on its own against the manufacturer. To

ensure that TCBs conduct audits impartially, the Commission will devise

procedures that TCBs will use for post-market surveillance, and we

delegate authority to the Chief, OET and the Chief, CCB to develop

procedures that TCBs will use for conducting post-market surveillance.

These procedures will address, for example, conducting field audits or

acquiring samples for testing. The TCB will test the products under the

Commission guidelines and report the results to us. TCBs will be able

to check the Commission's common database, described above, to avoid

reporting as non-compliant products that actually were subsequently re-

certified by another TCB. By using the TCBs to conduct audits, the

Commission will be able to secure information quickly from a variety of

sources about ongoing compliance, while focusing its own resources on

investigating specific problem cases. Based on the TCBs' reports, the

Commission may conduct further investigations and take appropriate

enforcement action against companies found to be marketing non-

compliant products. The Commission will also continue to perform post-

market surveillance in cases where we deem it warranted, and to audit

the performance of TCBs. These actions will help ensure that TCBs act

in a fair, impartial manner. We expect that TCBs will take the cost of

post-market surveillance into account when setting their fees. As

previously stated, we are not regulating the fees that TCBs charge, but

we expect that competitive pressures in the market will prevent a TCB

from charging excessive fees.

---------------------------------------------------------------------------

\13\ For example, low-power, unlicensed transmitters such as

cordless telephones and baby monitors have frequently been a source

of compliance problems because of pressures in the marketplace to

build them as cheaply as possible, or to increase their operating

range by increasing their transmitter power above the legal limit.

---------------------------------------------------------------------------

30. Consultative Activities. Several parties suggest that the

Commission develop a joint public-private sector working group to

address implementation issues as they arise. Commenters recommend that

this working group include all interested parties, such as TCBs, test

labs and manufacturers. We refrain from establishing a new formal

organization at this time, and choose to rely instead on existing

voluntary industry consensus groups. For example, for part 68 issues,

we intend to continue our cooperative association with TIA's TR.41

committees. Moreover, we intend to work with all interested parties to

implement the TCB program and to ensure its success.

Continued Certification by the Commission

31. We solicited comments on whether the Commission should

eventually stop certifying equipment once TCBs are designated. We

received mixed comments on this issue. Our goal in this proceeding is

to discontinue granting routine, non-controversial applications under

parts 2 and 68 of our rules when TCBs are available to perform the

work, but we do not at this time set a date when the Commission will

cease to issue authorizations. We conclude that the Commission should

continue approving equipment, including processing routine

applications, during the implementation of the TCB program. This will

help smooth the transition to the new system and ensure that at least

one organization is available to certify all types of equipment. After

we have some experience with the new system, we will assess the

effectiveness of the TCB program and determine when the Commission

should discontinue approving products. After the TCB program is

initiated, however, the Commission will continue to be the authorizing

body if no TCB is available to authorize a given type of equipment and

to process applications raising novel issues regarding application of

our rules.

[[Page 4990]]

32. We conclude that it is unnecessary for the Commission to

continue approving certification applications for personal computers

and peripherals, since that equipment can be authorized through the DoC

procedure. We find that processing these voluntarily filed applications

is not an efficient use of the Commission's resources. Accordingly,

once domestic TCBs are available to process applications for personal

computer equipment for those applicants who choose to use the

certification process rather than DoC, the Commission will stop

accepting these applications a reasonable time thereafter. The

Commission will announce by public notice when it will cease to accept

these applications. We amend Sec. 15.101 of the rules to reflect this

change.

Implementation Dates and Transition Periods

33. We proposed that a transition period of 24 months elapse before

any TCBs would be allowed to certify equipment. This time period was

proposed because it is similar to the provision of the US/EC MRA, which

specifies a 24 month transition period after the MRA effective date, so

that countries have time to modify requirements and procedures to meet

the MRA's obligations. Some commenters suggest that a transition period

be no more than 24 months, and perhaps less. Upon further

consideration, we do not find it necessary to delay the introduction of

the TCB system for a 24 month period, and we would rather implement the

TCB system as soon as practicable. Nonetheless, we cannot implement the

TCB system immediately because of a number of tasks which need to be

completed first. For example, we need to specify the documentation

necessary to meet the qualification criteria for TCBs, as discussed

above, and we need to develop with NIST the accreditation and

designation procedures. Although we will immediately begin taking the

necessary steps to implement the TCB system, we recognize that it is

difficult to specify a fixed date when TCBs will begin to certify

equipment. We also conclude that a fixed date would not serve the

ongoing accreditation and implementation processes. For example, TCBs

may be identified readily for some equipment, but not for others,

accreditation compliance dates may vary, and TCBs can enter and exit

the system at different times. Thus, we conclude that we will authorize

the use of TCBs as they are designated by the Chief, OET and the Chief,

CCB in a public notice.

Part 68 Issues

34. Terminology. In the NPRM, we discussed the use of the terms

``certification'' and ``registration'' as they apply to the part 68

program. Commenters suggest that the two terms are functional

equivalents, and recommend that we expand our use of the term

``certification'' to include our part 68 program. Commenters point out

that such usage would be consistent with various other parts of the

Federal Register, the norms of international terminology, and

specifically the language of the MRAs. We agree with commenters that

the use of common terminology benefit clarity and consistency, and

determine that the terms ``registration'' and ``certification'' are

equivalent for the purposes of our part 68 rules. To the extent

practicable, we will implement this change in the course of future rule

makings and administrative actions affecting part 68.

35. FCC Form 730. The part 68 program currently utilizes FCC Form

730 to transmit information from test labs and manufacturers to the

Commission. In the NPRM, we sought comment on whether we could utilize

that form to transmit test data to the Commission from TCB candidates

during the transition period. Although commenters support the use of a

common format for recording and transmitting information among TCBs and

the Commission, they do not support the use of FCC Form 730 for this

purpose. We agree that FCC Form 730 is not the optimal format for use

among TCBs and the Commission, intend to develop an electronic filing

system and common database to fulfill that purpose. In the mean time,

however, we find that it would be a waste of resources to create an

interim solution. Thus, we determine that we will utilize FCC Form 730

as the initial information transmission format for the purposes of

implementing the TCB program. We will, however, update this requirement

pursuant to further TCB program implementation activities.

Mutual Recognition Agreements (MRAs)

United States/European Community MRA

36. The Office of the United States Trade Representative and the

Department of Commerce have participated in negotiations over the past

several years to develop a mutual recognition agreement for product

approvals with the European Community (EC). The Commission has also

participated in these negotiations, as have industry representatives

from both the United States and Europe. These negotiations culminated

on June 21, 1997 when the US/EC MRA was finalized by the United States

Trade Representative and a representative of the European Community.

The Agreement was signed on May 18, 1998, and entered into force on

December 1, 1998.

37. The US/EC MRA addresses conformity assessment activities in six

industrial sectors: telecommunications equipment, electromagnetic

compatibility, electrical safety, recreational craft, pharmaceutical

good manufacturing practice, and medical devices. The Commission's

regulations apply directly to two industry sectors, telecommunications

equipment and electromagnetic compatibility (``EMC''), among the six

specifically addressed by the US/EC MRA. The telecommunications sector

addresses terminal equipment covered by part 68 of the rules, and

transmitters covered by part 2 and other parts of the Commission's

rules. The EMC sector applies to equipment addressed by parts 15 and 18

of the Commission's rules.14

---------------------------------------------------------------------------

\14\ See 47 CFR 2, 15, 18, and 68.

---------------------------------------------------------------------------

38. Under the US/EC MRA, products can be tested and certified in

the United States for conformance with EC member states' technical

requirements. The certified products may be shipped directly to Europe

without any further testing or certification. In return, the MRA

obligates the United States to permit parties in Europe to test and

authorize equipment based on the United States technical requirements.

The US/EC MRA thereby promotes bilateral market access and competition

in the provision of telecommunications products and electronic

equipment. The US/EC MRA also will reduce industry burdens and delays

caused by testing and approval requirements for products marketed in

the United States and Europe.

39. The US/EC MRA provides a 24 month transitional period that will

be used to implement the regulatory or legislative changes necessary

for both parties to implement the US/EC MRA. The period began on the

effective date of the MRA, which is December 1, 1998. At the end of the

transition period, the parties should be prepared for full mutual

recognition of product certifications and registrations. To ensure

parity between U.S. and EC manufacturers, we will not permit parties in

an EC country to test and approve products to U.S. requirements until

that country permits U.S. parties to test and approve products to its

requirements.

[[Page 4991]]

Asia-Pacific Economic Cooperation (APEC) MRA

40. The Office of the United States Trade Representative, at the

request of the United States telecommunication industry, has negotiated

a Mutual Recognition Arrangement (MRA) for Conformity Assessment for

Telecommunication products in the Asia-Pacific Economic Cooperation

(APEC), which is intended to facilitate trade in telecommunications and

radio equipment among the APEC economies. APEC is a trade cooperative

of twenty-one economies along the Pacific Rim. Commission staff and

representatives of the United States telecommunications industry have

been participating in a Task Force Group under the Telecom Working

Group of APEC, which was established in March, 1997 to facilitate the

development of the APEC Telecom MRA.

41. The text of the model APEC Telecom MRA was finalized on April

30, 1998 and was endorsed at the APEC Ministerial Meeting on June 5,

1998. Unlike the US/EC MRA, the APEC Telecom MRA is a voluntary model

agreement. To enact the agreement, each APEC member economy must adopt

the agreement with each of its APEC trade partners, such as the United

States, through a bilateral exchange of letters. Participation in the

APEC Telecom MRA is voluntary; however, if a member economy chooses to

participate, the model text becomes the governing document for

conformity assessment between the participating member economies. The

MRA is expected to take effect on July 1, 1999, although individual

parties may agree to apply it bilaterally before that date. The key

elements of the APEC Telecom MRA text are substantially similar to the

key elements of the US/EC MRA text, with the following exceptions: the

APEC Telecom MRA has specific designation procedures for conformity

assessment bodies (CABs); when parties agree to participate in

activities with one another, the transition period will normally be

twelve months from the date of mutual agreement; and implementation

occurs in two phases--the first for accepting test results and the

second for accepting product approvals. As in the case of the US/EC

MRA, we will not permit parties in an APEC member economy to test and

approve products to U.S. requirements unless that member economy

permits parties in the U.S. to test and approve products to its

requirements. We adopt the tentative conclusion in the NPRM that the

rules proposed in this proceeding to implement the US/EC MRA are

sufficient to implement the APEC Telecom MRA.

Other MRAs

42. We anticipate that the United States may develop or participate

in additional mutual recognition agreements that involve other regions

of the world. For example, the Interamerican Telecommunications

Committee (CITEL) of the Organization of American States is considering

developing an MRA for the Americas region.

Designation of TCBs for Equipment Imported Into the United States

43. The NPRM proposed to amend our rules as required to permit

parties in MRA partner economies to certify radio frequency devices for

conformance with parts 2, 15, 18 and other rule parts and to test and

certify telecommunications equipment for conformance with part 68. We

proposed that these privileges should only be granted subject to the

terms and conditions specified in the MRA. No parties disagreed with

this proposal. Accordingly, we are amending parts 2 and 68 of our rules

to allow parties in MRA partner economies to certify equipment under

applicable MRA terms and conditions.

44. In accordance with the US/EC and APEC MRAs, the United States

and each MRA partner will identify a ``Designating Authority'' in its

territory. A Designating Authority is a body with power to designate,

monitor, suspend, remove suspension of or withdraw conformity

assessment bodies (CABs) in accordance with the MRAs. The Designating

Authorities must meet the requirements of ISO/IEC Guide 61. Designating

Authorities will in turn designate CABs, also within each country's

territory, that will be empowered to approve products for conformity

with the technical requirements of countries to which the equipment is

exported. As used in the APEC and US/EC MRAs, ``conformity assessment

body'' is a general term that refers to a body, which may include a

third party testing laboratory or a certification body, that performs

conformity assessment to specific technical regulations. Consequently,

the MRAs cover two types of product approvals under the Commission's

rules: certification, which is approval granted by a certification

body, such as a TCB, and declaration of conformity, which requires

product testing by an accredited testing laboratory.15 The

MRAs state that the designation of CABs is based on international

standards, specifically ISO/IEC Guides 65 and 25.

---------------------------------------------------------------------------

\15\ See 47 CFR 2.948(d). Laboratories that perform testing for

a declaration of conformity must be Guide 25 accredited. The

accreditation of laboratories located outside the U.S. is acceptable

only if (1) there is an MRA between that country and the U.S., and

the laboratory is covered by the agreement; (2) there is an

agreement between accrediting bodies that permits similar

accreditation of U.S. facilities to perform testing for products

marketed in that country; or (3) the country already accepts the

accreditation of U.S. laboratories.

---------------------------------------------------------------------------

45. Because CABs in exporting countries will be certifying

equipment for import into the United States, we expect that those CABs

will follow all relevant Commission requirements for certification,

including those requirements adopted in the Report and Order. Thus,

CABs will follow the implementation guidelines discussed. The MRAs

contain provisions to remove the designation of foreign certifiers that

do not comply with the applicable requirements. Those provisions are

discussed below.

Designation of TCBs for Equipment Exported From the United States

46. The US/EC and APEC MRAs identify the Designating Authorities

for the United States as NIST and the Federal Communications

Commission. NIST will designate conformity assessment bodies, such as

TCBs, in the United States for equipment that will be exported through

its National Voluntary Conformity Assessment System Evaluation (NVCASE)

program. NIST will oversee the United States conformity assessment

bodies on an ongoing basis to ensure that they are performing in a

satisfactory manner. We stated in the NPRM that it would be unnecessary

for the Commission to play a direct role in designating or supervising

TCBs with respect to equipment being exported. However, the Commission

would provide assistance and guidance to NIST as may be necessary. For

example, if questions arise as to the performance of a United States-

based CAB, the Commission would make its expertise in testing and

measurements available as needed to resolve such matters.

47. We adopt the approach described in the NPRM for designating

conformity assessment bodies, such as TCBs, in the United States for

equipment that will be exported to countries pursuant to MRAs. TCBs

designated to certify equipment for export to a specific country shall

meet the qualification criteria specified in the relevant MRA. We

conclude that NIST has sufficient resources and experience to assume

responsibility for designating and overseeing the performance of TCBs

certifying equipment for export, in

[[Page 4992]]

conformance with MRA obligations. Thus, the Commission will not perform

designation and oversight functions for TCBs certifying equipment for

export, but will provide assistance and guidance to NIST as necessary.

48. We received several comments on the MRA provisions for

equipment being exported from the United States. Some of the concerns

raised are already addressed by provisions of the MRAs. For example,

the EC requirements for telecommunications equipment are covered by

three separate directives--EMC, Low Voltage and Telephone Terminal

Equipment (TTE) Directives. Each directive has distinct conformity

assessment requirements. Under the EMC Directive most equipment is

subject to supplier's declaration, except that when standards are not

harmonized within the EC or the equipment is too large for remote

testing, the supplier must use what is called the Technical

Construction File (TCF) route to market, requiring the use of a CAB

called a Competent Body. NIST will be able to designate a U.S. entity

to serve as a Competent Body, provided the entity is accredited to

Guide 25 and meets the appropriate technical requirements in the EMC

Directive. Radio transmitters and telephone terminal equipment subject

to the TTE Directive, which is the most frequently used route to

market, must be approved by a CAB called a Notified Body, which is

accredited to Guide 65. In either case, NIST will accredit and

designate the U.S. TCBs to the appropriate directives. Under the MRAs,

parties are to accept test results and product certifications prepared

by CABs in other countries. The APEC MRA, for example, clarifies that

an importing party is to accept test reports on terms no less favorable

than those it accords to those produced by its own CABs and that re-

testing or duplicate testing is to be avoided. Because technical

standards vary by country, a U.S. CAB may be found qualified to certify

equipment intended for export to some countries but not others. The US/

EC MRA, for example, does not require that CABs in this country be

capable of approving equipment to all of the EC member states

requirements, and we find no basis for imposing such a requirement. We

expect that CABs will be able to provide certification for multiple

countries because manufacturers will expect this level of service from

CABs.

Administration of the MRAs

49. The US/EC MRA provides for oversight of implementation by a

Joint Committee and Joint Sectorial Committees (``JSC''). The MRA

provides that Commission representatives will participate in both

committees for the United States with regard to telecommunications

equipment and electromagnetic compatibility sectors. The APEC MRA has

similar provisions for a Joint Committee consisting of representatives

of each party, with subcommittees including persons from the business/

private sector. We conclude that Commission participation in the Joint

Committees and JSCs will be important to ensure the successful

administration and implementation of the US/EC and APEC MRAs. For

example, the Commission may serve as an independent authority to

evaluate claims of performance deficiencies by United States TCBs or

the noncompliance of specific equipment with European technical

requirements.

50. With regard to ensuring the ongoing compliance of TCBs, the US/

EC MRA provides that if a particular TCB does not appear to be

performing satisfactorily, the Commission may request that the

noncompliant TCB take corrective actions. The Commission may also

present appropriate evidence to the JSCs and/or Joint Committee and

request removal of the TCB from the list of designated Certification

Bodies. The APEC MRA also has provisions for contesting a TCB's

technical competence, and provides a framework to limit or remove the

recognition of TCBs when necessary. The Commission shall consult with

the Office of the United States Trade Representative (USTR), as

necessary, concerning any disputes that arise under an

MRA.16

---------------------------------------------------------------------------

\16\ See the Telecommunications Trade Act of 1988 (Section 1371-

1382 of the Omnibus Trade and Competitiveness Act of 1988). Section

1377 requires the USTR to conduct a review to determine whether any

act, policy, or practice of a foreign country that has entered into

a telecommunications-related agreement with the U.S. (1) is not in

compliance with the terms of the agreement; or (2) otherwise denies,

within the context of the agreement, mutually advantageous market

opportunities to telecommunications products and services of U.S.

firms in that country.

---------------------------------------------------------------------------

Global Mobile Personal Communications by Satellite (GMPCS)

51. The NPRM proposed to adopt an interim equipment authorization

procedure for GMPCS terminals prior to full implementation of the GMPCS

Arrangements. The Commission will be undertaking a separate proceeding

to propose rules to implement fully the GMPCS Arrangements. Because one

GMPCS operator was providing service prior to the NPRM and another

system was scheduled to commence service before final rules

implementing the Arrangements could be adopted, we proposed a set of

interim standards under which applicants could request equipment

certification. We believe that certification of GMPCS terminals will be

a major benefit to the global satellite industry. A Commission

equipment authorization, and the subsequent placement of the ``GMPCS-

MoU ITU Registry'' mark on the terminals, would potentially be

recognized by many foreign countries as sufficient to allow the

equipment to transit borders more easily and without additional type

approvals, equipment testing, or imposition of fees or delay for the

user.

52. The NPRM proposed a voluntary equipment authorization procedure

that would apply to GMPCS terminals as defined by the 1996 World

Telecommunications Policy Forum held under the auspices of the ITU. The

terminals would be certified in accordance with the requirements in

parts 1, 2 and 25 of the rules.17 In addition, we proposed

that terminals operating in the 1610-1626.5 MHz band would also have to

meet the out-of-band emission limits recommended for implementation by

the year 2000 by the National Telecommunications and Information

Administration (NTIA) in their September 1997 petition for rule

making.18

---------------------------------------------------------------------------

\17\ See 47 CFR, 1, 2 and 25. Part 25 contains the technical

requirements for satellite communications. Part 1 contains the

requirements for RF safety, and part 2 contains the equipment

authorization requirements.

\18\ See RM-9165.

---------------------------------------------------------------------------

53. A number of parties expressed concern about the out-of-band

emission limits proposed. LSC, Raytheon and the GPS Council state that

the proposed NTIA limits are not stringent enough to protect GPS and

GLONASS. However, AMSC and CCI state that the NTIA limits are too

stringent. CCI objects to the fact that they have not been adopted

through a rule making. Moreover, MCHI believes that the Commission

should wait to approve equipment until final standards are adopted,

since there may be difficulties in recalling or retrofitting

noncompliant equipment if the final standards adopted are more

stringent than the interim ones. TIA in their comments, and Globalstar/

Airtouch, Iridium, MCHI, Motorola and ORBCOMM in their reply comments,

all state that the issue of out-of-band limits should be addressed in a

separate rule-making proceeding.

54. In addition to uniform support expressed for the Commission's

intention to rapidly implement the GMPCS-MoU Arrangements, we also

received comments concerning other issues related to the interim GMPCS

equipment certification. Primary among these was an indication by

several

[[Page 4993]]

parties that the Commission was limiting the interim authorization

procedure to ``Big Leos'' 19 in the NPRM. Final Analysis,

ICO, Lockheed, ORBCOMM and Iridium all state that the interim

authorization procedure should apply to other mobile satellite

terminals.

---------------------------------------------------------------------------

\19\ ``Big Leo'' systems provide voice and data Mobile-Satellite

Service via a constellation of one or more non-geostationary orbit

satellites operating in the band of 1610-1626.5 MHz.

---------------------------------------------------------------------------

55. In the NPRM, we specifically proposed to apply an interim

procedure for certifying all GMPCS-related terminal equipment where we

have authorized service and which demonstrates compliance with the

Commission's relevant parts 1 and 25 standards, including emission

limits for ``Little Leos'' 20 contained in 25.202(f). In

light of the comments, we adopt the voluntary interim procedures for

all GMPCS terminal equipment.

---------------------------------------------------------------------------

\20\ ``Little Leo'' systems provide data-only Mobile-Satellite

Service via a constellation of non-geostationary orbit satellites

operating below 1 GHz.

---------------------------------------------------------------------------

56. For terminals operating in the 1610-1626.5 MHz band, we

proposed to add a requirement that the out-of-band emission limit of -

70 dBW/MHz averaged over any 20 millisecond period for wide band

emissions occurring between 1559-1605 MHz and -80 dBW/700 Hz for narrow

band emissions occurring between 1559-1605 MHz would also need to be

met. We find that, for the following reasons, use of the proposed out-

of-band emission standards for terminals operating in the 1610-1626.5

MHz band will facilitate the authorization process for this equipment.

First, the International Telecommunication Union's Radio Sector (ITU-R)

Study Group WP 8D has adopted the proposed wideband standard as a

recommendation for suppression of spurious emissions for MSS systems

with mobile earth terminals. Similarly, the European Commission/CEPT

adopted a European Testing and Standards Institute (ETSI) standard late

last year for both CDMA and TDMA-type Mobile Satellite Service (MSS)

systems based on this ITU-R recommendation. Second, NTIA proposed both

the wide and narrowband standards cited in its recent petition for rule

making concerning out-of-band emissions standards for protection of

radionavigation devices. By using the most stringent requirement

currently under review, we will ensure that MCHI's concern over the

recall or retrofit of non-compliant equipment in the future is

minimized. Since the Commission will consider the NTIA petition for

rule making in conjunction with full implementation of the GMPCS

Arrangements, any further concerns about the proposed NTIA out-of-band

emission limits are best addressed in the future, separate proceeding.

57. In adopting this standard for voluntary interim certification,

we are not prejudging the standards that we will ultimately adopt in

our future GMPCS proceeding. Rather, we are establishing here a

voluntary certification process designed to facilitate the circulation

of GMPCS terminals across borders, aiding system operators,

manufacturers and users of GMPCS service. If the standards we adopt in

the GMPCS proceeding are more stringent than the ones used for interim

certification, we will require the terminals to meet the stricter

standards, in accordance with any associated implementation provisions

adopted in that proceeding. In order to be used, the terminals must be

operated with a satellite system or service provider authorized to

provide mobile satellite service in the United States. Subsequent to

receiving a blanket authorization under part 25 of the rules, terminals

may be authorized under part 2 of the rules.

58. Accordingly, we amend part 25 of the rules to allow for the

voluntary equipment authorization of all GMPCS terminals meeting the

requirements set forth in our NPRM. Authorizations granted under this

interim provision will be conditioned on the equipment meeting all

final standards eventually adopted for GMPCS-related equipment.

59. Accordingly, It is ordered that parts 0, 2, 15, 25 and 68 of

the Commission's Rules and Regulations are amended as specified in the

Rule Changes attachment and are effective May 3, 1999. This action is

taken pursuant to sections 4(i), 301, 302, 303(e), 303(f), 303(r), 304

and 307 of the Communications Act of 1934, as amended, 47 U.S.C.

154(i), 301, 302, 303(e), 303(f), 303(r), 304 and 307.

60. It is further ordered that, pursuant to Section 5(c)(1) of the

Communications Act of 1934, as amended, 47 U.S.C. 155(c)(1), authority

is delegated to the copy Chief, Office of Engineering and Technology

(OET) and the Chief, Common Carrier Bureau (CCB) to develop specific

methods that will be used by the National Institute for Standards and

Technology (NIST) to accredit TCBs, consistent with the qualification

criteria herein, to enter into a memorandum of understanding with NIST

on the accreditation process for TCBs, to designate and withdraw the

designation of TCBs, and to develop procedures that TCBs will use for

performing post-market surveillance.

Final Regulatory Flexibility Analysis

61. As required by the Regulatory Flexibility Act

(RFA),21 an Initial Regulatory Flexibility Analysis (IRFA)

was incorporated in the Notice of Proposed Rule Making in GEN Docket

98-68.22 The Commission sought written public comment on the

proposals in the NPRM, including comment on the IRFA. The comments

received are discussed below. This Final Regulatory Flexibility

Analysis (FRFA) conforms to the RFA.23

---------------------------------------------------------------------------

\21\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et. seq., has

been amended by the Contract With America Advancement Act of 1996,

Public Law 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the

CWAAA is the Small Business Regulatory Enforcement Fairness Act of

1996 (SBREFA).

\22\ See Notice of Proposed Rule Making in GEN Docket 98-68, 13

FCC Rcd 10683, 10711 (1998), 63 FR 31685, June 10, 1998.

\23\ See 5 U.S.C. 604.

---------------------------------------------------------------------------

Need for, and Objectives of, This Report and Order

62. The Commission is amending parts 2, 15, 25 and 68 of the rules

to provide the option of private sector approval of equipment that

currently requires an approval by the Commission. We are also adopting

rule changes to implement a Mutual Recognition Agreement (MRA) for

product approvals with the European Community (EC), the Asia Pacific

Economic Cooperation (APEC) and other foreign trade parties. These

actions will eliminate the need for manufacturers to wait for approval

from the Commission before marketing equipment in the United States,

thereby reducing the time needed to bring a product to market. We are

also adopting an interim procedure to issue equipment approvals for

Global Mobile Personal Communication for Satellite (GMPCS) terminals

prior to domestic implementation of the GMPCS-MoU Arrangements.\24\

\25\ That action will benefit manufacturers of GMPCS terminals by

allowing greater worldwide acceptance of their products.

---------------------------------------------------------------------------

\24\ ``Global Mobile Personal Communications by Satellite''

(GMPCS) service is defined in the 1996 Final Report of the World

Telecommunications Policy Forum as: ``any satellite system, (i.e.,

fixed or mobile, broadband or narrow-band, global or regional,

geostationary or non-geostationary, existing or planned) providing

telecommunication services directly to end users from a

constellation of satellites.''

\25\ The GMPCS MoU and Arrangements are intended to allow the

worldwide transport and use of GMPCS equipment. They are described

in more detail in the NPRM.

---------------------------------------------------------------------------

Summary of Significant Issues Raised by Public Comments in Response to

the IRFA

63. Several parties commented on the IRFA. ACIL, Acme, ICS and

Retlif noted

[[Page 4994]]

that the IRFA only focuses on the costs to small manufacturers and not

to small test laboratories. Acme stated that small testing laboratories

may not have the resources to become TCBs and may be forced to exit the

testing business. Retlif stated that the rules will add another

assessment fee to test laboratories who wish to become TCBs or

subcontract with TCBs. SEA does not believe the benefits of the rules

described in the IRFA outweigh the increased expenses and paperwork

burdens that will fall on RF equipment manufacturers.26

However, in its reply comments, TIA disagreed with SEA, stating that

the increased number of TCBs would benefit small companies because of

their global reach. TIA further stated that the vast majority of its

900 members are small and medium companies that support the

Commission's proposed changes.

---------------------------------------------------------------------------

\26\ See SEA Regulatory Flexibility comments at 3. The four

benefits to manufacturers we listed in the IRFA are (1) providing

manufacturers with alternatives where they could possibly obtain

certification faster than available from the Commission; (2)

providing the option of obtaining certification from a facility in a

more convenient location; (3) reducing the number of applications

filed with the Commission, thereby enabling the Commission to

redirect resources to enforcement of the rules; and (4) allowing

equipment to be certified in other countries is a necessary step for

concluding mutual recognition agreements.

---------------------------------------------------------------------------

Description and Estimate of the Number of Small Entities to Which Rules

Will Apply

64. Under the RFA, small entities may include small organizations,

small businesses, and small governmental jurisdictions. 5 U.S.C.

601(6). The RFA, 5 U.S.C. 601(3), generally defines the term ``small

business'' as having the same meaning as the term ``small business

concern'' under the Small Business Act, 15 U.S.C. 632. A small business

concern is one which: (1) is independently owned and operated; (2) is

not dominant in its field of operation; and (3) satisfies any

additional criteria established by the Small Business Administration

(``SBA''). This standard also applies in determining whether an entity

is a small business for purposes of the RFA.

65. Regulatory Flexibility Analyses need only address the impact of

rules on small entities directly regulated by those rules. See Mid-Tex

Electric Cooperative, Inc. v. FERC, 773 F.2d 327, 342-43 (D.C. Cir.

1985). The Commission's equipment authorization rules directly regulate

only manufacturers of equipment, which must satisfy the Commission's

product approval requirements, and not test laboratories. Therefore, we

disagree with ACIL, Acme, ICS and Retlif that the IRFA should have

addressed the impact of the rules on small test laboratories.

66. The Commission has not developed a definition of small entities

applicable to RF Equipment Manufacturers. Therefore, the applicable

definition of small entity is the definition under the SBA rules

applicable to manufacturers of ``Radio and Television Broadcasting and

Communications Equipment.'' According to the SBA's regulation, an RF

manufacturer must have 750 or fewer employees in order to qualify as a

small business.27 Census Bureau data indicates that there

are 858 companies in the United States that manufacture radio and

television broadcasting and communications equipment, and that 778 of

these firms have fewer than 750 employees and would be classified as

small entities.28 We believe that many of the companies that

manufacture RF equipment may qualify as small entities.

---------------------------------------------------------------------------

\27\ See 13 CFR 121.201, Standard Industrial Classification

(SIC) Code 3663.

\28\ See U.S. Department of Commerce, 1992 Census of

Transportation, Communications and Utilities (issued may 1995), SIC

category 3663.

---------------------------------------------------------------------------

67. The Commission has not developed a definition of small

manufacturers of telephone terminal equipment. The closest applicable

definition under SBA rules is for manufacturers of telephone and

telegraph apparatus (SIC 3661), which defines a small manufacturer as

one having 1,000 or fewer employees.29 According to 1992

Census Bureau data, there were 479 such manufacturers, and of those,

436 had 999 or fewer employees, and 7 had between 1,000 and 1,499

employees.30 We estimate that there are fewer than 443 small

manufacturers of terminal equipment that may be affected by the

proposed rules.

---------------------------------------------------------------------------

\29\ 13 CFR 121.201, SIC 3661.

\30\ 1992 Economic Census, Industry and Employment Size of Firm,

Table 1D (data prepared by U.S. Census Bureau under contract to the

U.S. Small Business Administration).

---------------------------------------------------------------------------

Description of Projected Reporting, Recordkeeping, and Other Compliance

Requirements

68. We are allowing designated Telecommunication Certification

Bodies (TCBs) in the United States to issue equipment approvals.

Applicants for equipment authorization may apply either to the FCC or

to a TCB, and they will be required to submit the same application data

and exhibits to either that the rules currently require. Therefore,

there will be no increase in the paperwork burden on manufacturers.

69. We are adopting changes to implement mutual recognition

agreements with the European Community and the Asia Pacific Economic

Cooperation that will permit certain equipment currently required to be

authorized by the FCC to be authorized instead by TCBs in Europe or

Asia. As with TCBs in the United States, applicants would be required

to submit to a foreign TCB the same application data and exhibits they

now submit to the Commission.

70. We are requiring that TCBs submit a copy of certain parts of

each approved application to the FCC. Applications for equipment

authorization under part 2 of the rules will be sent and stored

electronically using the new OET electronic filing system. Paper copies

of part 68 applications will be required, since there is not yet an

electronic filing system for those applications.

71. We are also allowing a voluntary equipment authorization for

mobile transmitters used in the Global Mobile Personal Communications

by Satellite (GMPCS) service. This will require manufacturers who want

to use the voluntary procedure to file an application and technical

exhibits with the FCC and wait for an approval before the equipment can

be marketed. While using the procedure would require an additional

filing with the FCC, it will ultimately reduce the burden on

manufacturers. Under the terms of the GMPCS-MoU and Arrangements, the

single approval obtained in the United States could eliminate the need

to obtain approvals from multiple other countries.

Steps Taken to Minimize Significant Economic Impact on Small Entities,

and Significant Alternatives Considered

72. Certain equipment that uses radio frequencies or is connected

to the public switched telecommunications network must be approved by

the Commission before it can be marketed. Allowing parties other than

the Commission to certify equipment will have the following benefits:

(a) It will provide manufacturers with alternatives where they

could possibly obtain certification faster than available from the

Commission.

(b) Manufacturers will have the option of obtaining certification

from a facility in a more convenient location.

(c) It will reduce the number of applications filed with the

Commission, which will enable the Commission to redirect resources to

enforcement of the rules. This will ensure a ``level playing field''

for all manufacturers.

(d) Allowing equipment to be certified by parties located in other

countries is

[[Page 4995]]

an essential and necessary step for concluding mutual recognition

agreements (MRAs). MRAs benefit manufacturers by improving access to

foreign markets.

73. As previously stated, SEA argued that these four benefits do

not outweigh the significant increased expenses and greater paperwork

burden that will fall on RF equipment manufacturers as a result of the

rules. TIA disagreed with SEA, stating that the increased number of

TCBs would benefit small companies because of their global reach, and

that the vast majority of its members are small and medium companies

that support the changes proposed in the NPRM.

74. The Report and Order allows parties other than the Commission

to certify equipment, but it does not change the information required

to obtain a grant of certification. Therefore, there will not be an

increase in the paperwork burden on manufacturers. SEA does not provide

any data to justify its claim of significantly higher expenses to

manufacturers. Further, the Commission will continue to grant

certifications, and these manufacturers have the option to use a TCB,

but are not required to do so. The Commission will not regulate the

fees that TCBs can charge. However, as we stated in the Report and

Order, we expect that competition between TCBs should encourage them to

process applications at a reasonable expense.

75. Report to Congress: The Commission shall send a copy of this

Final Regulatory Flexibility Analysis, along with this Report and

Order, in a report to Congress pursuant to the Small Business

Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801(a)(1)(A), and

the Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects

47 CFR Part 0

Reporting and recordkeeping requirements.

47 CFR Part 2

Radio, Reporting and recordkeeping requirements.

47 CFR Part 15

Communications equipment.

47 CFR Part 25 and 68

Communications equipment, report and recordkeeping requirements.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

For the reasons discussed in the preamble, the Federal

Communications Commission amends 47 CFR parts 0, 2, 15, 25 and 68 as

follows:

PART 0--COMMISSION ORGANIZATION

1. The authority citation for part 0 continues to read as follows:

Authority: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155, 225

unless otherwise noted.

2. Section 0.241 is amended by adding paragraph (g) to read as

follows:

Sec. 0.241 Authority delegated.

* * * * *

(g) The Chief of the Office of Engineering and Technology is

delegated authority to enter into agreements with the National

Institute of Standards and Technology to perform accreditation of

Telecommunication Certification Bodies (TCBs) pursuant to Secs. 2.960

and 2.962 of this chapter. In addition, the Chief is delegated

authority to develop specific methods that will be used to accredit

TCBs, to designate TCBs, to make determinations regarding the continued

acceptability of individual TCBs, and to develop procedures that TCBs

will use for performing post-market surveillance.

3. Section 0.291 is amended by adding paragraph (i) to read as

follows:

Sec. 0.291 Authority delegated.

* * * * *

(i) The Chief, Common Carrier Bureau, is delegated authority to

enter into agreements with the National Institute of Standards and

Technology to perform accreditation of Telecommunication Certification

Bodies (TCBs) pursuant to Secs. 68.160 and 68.162 of this chapter. In

addition, the Chief is delegated authority to develop specific methods

that will be used to accredit TCBs, to designate TCBs, to make

determinations regarding the continued acceptability of individual TCBs

and to develop procedures that TCBs will use for performing post-market

surveillance.

PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL

RULES AND REGULATIONS

4. The authority citation for part 2 continues to read as follows:

Authority: 47 U.S.C. 154, 302, 303, 307 and 336, unless

otherwise noted.

5. Section 2.960 is added to read as follows:

Sec. 2.960 Designation of Telecommunication Certification Bodies

(TCBs).

(a) The Commission may designate Telecommunication Certification

Bodies (TCBs) to approve equipment as required under this part.

Certification of equipment by a TCB shall be based on an application

with all the information specified in this part. The TCB shall process

the application to determine whether the product meets the Commission's

requirements and shall issue a written grant of equipment

authorization. The grant shall identify the TCB and the source of

authority for issuing it.

(b) The Federal Communications Commission shall designate TCBs in

the United States to approve equipment subject to certification under

the Commission's rules. TCBs shall be accredited by the National

Institute of Standards and Technology (NIST) under its National

Voluntary Conformity Assessment Evaluation (NVCASE) program, or other

recognized programs based on ISO/IEC Guide 65, to comply with the

Commission's qualification criteria for TCBs. NIST may, in accordance

with its procedures, allow other appropriately qualified accrediting

bodies to accredit TCBs and testing laboratories. TCBs shall comply

with the requirements in Sec. 2.962 of this part.

(c) In accordance with the terms of an effective bilateral or

multilateral mutual recognition agreement or arrangement (MRA) to which

the United States is a party, bodies outside the United States shall be

permitted to authorize equipment in lieu of the Commission. A body in

an MRA partner economy may authorize equipment to U.S. requirements

only if that economy permits bodies in the United States to authorize

equipment to its requirements. The authority designating these

telecommunication certification bodies shall meet the following

criteria.

(1) The organization accrediting the prospective telecommunication

certification body shall be capable of meeting the requirements and

conditions of ISO/IEC Guide 61.

(2) The organization assessing the telecommunication certification

body shall appoint a team of qualified experts to perform the

assessment covering all of the elements within the scope of

accreditation. For assessment of telecommunications equipment, the

areas of expertise to be used during the assessment shall include, but

not be limited to, electromagnetic compatibility and telecommunications

equipment (wired and wireless).

6. Section 2.962 is added to read as follows:

[[Page 4996]]

Sec. 2.962 Requirements for Telecommunication Certification Bodies.

(a) Telecommunication certification bodies (TCBs) designated by the

Commission, or designated by another authority pursuant to an effective

bilateral or multilateral mutual recognition agreement or arrangement

to which the United States is a party, shall comply with the following

requirements.

(b) Certification methodology. (1) The certification system shall

be based on type testing as identified in sub-clause 1.2(a) of ISO/IEC

Guide 65.

(2) Certification shall normally be based on testing no more than

one unmodified representative sample of each product type for which

certification is sought. Additional samples may be requested if clearly

warranted, such as when certain tests are likely to render a sample

inoperative.

(c) Criteria for Designation. (1) To be designated as a TCB under

this section, an entity shall, by means of accreditation, meet all the

appropriate specifications in ISO/IEC Guide 65 for the scope of

equipment it will certify. The accreditation shall specify the group of

equipment to be certified and the applicable regulations for product

evaluation.

(2) The TCB shall demonstrate expert knowledge of the regulations

for each product with respect to which the body seeks designation. Such

expertise shall include familiarity with all applicable technical

regulations, administrative provisions or requirements, as well as the

policies and procedures used in the application thereof.

(3) The TCB shall have the technical expertise and capability to

test the equipment it will certify and shall also be accredited in

accordance with ISO/IEC Guide 25 to demonstrate it is competent to

perform such tests.

(4) The TCB shall demonstrate an ability to recognize situations

where interpretations of the regulations or test procedures may be

necessary. The appropriate key certification and laboratory personnel

shall demonstrate a knowledge of how to obtain current and correct

technical regulation interpretations. The competence of the

telecommunication certification body shall be demonstrated by

assessment. The general competence, efficiency, experience, familiarity

with technical regulations and products included in those technical

regulations, as well as compliance with applicable parts of the ISO/IEC

Guides 25 and 65, shall be taken into consideration.

(5) A TCB shall participate in any consultative activities,

identified by the Commission or NIST, to facilitate a common

understanding and interpretation of applicable regulations.

(6) The Commission will provide public notice of the specific

methods that will be used to accredit TCBs, consistent with these

qualification criteria.

(d) Sub-contractors. (1) In accordance with the provisions of sub-

clause 4.4 of ISO/IEC Guide 65, the testing of a product, or a portion

thereof, may be performed by a sub-contractor of a designated TCB,

provided the laboratory has been assessed by the TCB as competent and

in compliance with the applicable provisions of ISO/IEC Guide 65 and

other relevant standards and guides.

(2) When a subcontractor is used, the TCB shall be responsible for

the test results and shall maintain appropriate oversight of the

subcontractor to ensure reliability of the test results. Such oversight

shall include periodic audits of products that have been tested.

(e) Designation of TCBs. (1) The Commission will designate as a TCB

any organization that meets the qualification criteria and is

accredited by NIST or its recognized accreditor.

(2) The Commission will withdraw the designation of a TCB if the

TCB's accreditation by NIST or its recognized accreditor is withdrawn,

if the Commission determines there is just cause for withdrawing the

designation, or if the TCB requests that it no longer hold the

designation. The Commission will provide a TCB with 30 days notice of

its intention to withdraw the designation and provide the TCB with an

opportunity to respond.

(3) A list of designated TCBs will be published by the Commission.

(f) Scope of responsibility. (1) TCBs shall certify equipment in

accordance with the Commission's rules and policies.

(2) A TCB shall accept test data from any source, subject to the

requirements in ISO/IEC Guide 65, and shall not unnecessarily repeat

tests.

(3) TCBs may establish and assess fees for processing certification

applications and other tasks as required by the Commission.

(4) A TCB may rescind a grant of certification within 30 days of

grant for administrative errors. After that time, a grant can only be

revoked by the Commission through the procedures in Sec. 2.939 of this

part. A TCB shall notify both the applicant and the Commission when a

grant is rescinded.

(5) A TCB may not:

(i) Grant a waiver of the rules, or certify equipment for which the

Commission rules or requirements do not exist or for which the

application of the rules or requirements is unclear.

(ii) Take enforcement actions; or

(iii) Authorize a transfer of control of a grantee.

(6) All TCB actions are subject to Commission review.

(g) Post-certification requirements. (1) A TCB shall supply an

electronic copy of each approved application form and grant of

certification to the Commission.

(2) In accordance with ISO/IEC Guide 65, a TCB is required to

conduct appropriate post-market surveillance activities. These

activities shall be based on type testing a few samples of the total

number of product types which the certification body has certified.

Other types of surveillance activities of a product that has been

certified are permitted, provided they are no more onerous than testing

type. The Commission may at any time request a list of products

certified by the certification body and may request and receive copies

of product evaluation reports. The Commission may also request that a

TCB perform post-market surveillance, under Commission guidelines, of a

specific product it has certified.

(3) If during post market surveillance of a certified product, a

certification body determines that a product fails to comply with the

applicable technical regulations, the certification body shall

immediately notify the grantee and the Commission. A follow-up report

shall also be provided within thirty days of the action taken by the

grantee to correct the situation.

(4) Where concerns arise, the TCB shall provide a copy of the

application file within 30 calendar days upon request by the Commission

to the TCB and the manufacturer. Where appropriate, the file should be

accompanied by a request for confidentiality for any material that

qualifies as trade secrets. If the application file is not provided

within 30 calendar days, a statement shall be provided to the

Commission as to why it cannot be provided.

(h) In case of a dispute with respect to designation or recognition

of a TCB and the testing or certification of products by a TCB, the

Commission will be the final arbiter. Manufacturers and designated TCBs

will be afforded at least 30 days to comment before a decision is

reached. In the case of a TCB designated or recognized, or a product

certified pursuant to an effective bilateral or multilateral mutual

recognition agreement or arrangement (MRA) to which the United States

is a party, the Commission may limit or withdraw its recognition of a

TCB

[[Page 4997]]

designated by an MRA party and revoke the certification of products

using testing or certification provided by such a TCB. The Commission

shall consult with the Office of the United States Trade Representative

(USTR), as necessary, concerning any disputes arising under an MRA for

compliance with the Telecommunications Trade Act of 1988 (Section 1371-

1382 of the Omnibus Trade and Competitiveness Act of 1988).

PART 15--RADIO FREQUENCY DEVICES

7. The authority citation for part 15 continues to read as follows:

Authority: 47 U.S.C. 154, 302, 303, 304, 307 and 544A.

8. Section 15.101, is amended by revising paragraph (a) to read as

follows:

Sec. 15.101 Equipment authorization of unintentional radiators.

(a) Except as otherwise exempted in Secs. 15.23, 15.103, and

15.113, unintentional radiators shall be authorized prior to the

initiation of marketing, as follows:

----------------------------------------------------------------------------------------------------------------

Type of device Equipment authorization required

----------------------------------------------------------------------------------------------------------------

TV broadcast receiver.................. Verification.

FM broadcast receiver.................. Verification.

CB receiver............................ Declaration of Conformity or Certification.

Superregenerative receiver............. Declaration of Conformity or Certification.

Scanning receiver...................... Certification.

All other receivers subject to part 15. Declaration of Conformity or Certification.

TV interface device.................... Declaration of Conformity or Certification.

Cable system terminal device........... Declaration of Conformity.

Stand-alone cable input selector switch Verification.

Class B personal computers and Declaration of Conformity or Certification.\1\

peripherals.

CPU boards and internal power supplies Declaration of Conformity or Certification.\1\

used with Class B personal computers.

Class B personal computers assembled Declaration of Conformity.

using authorized CPU boards or power

supplies.

Class B external switching power Verification.

supplies.

Other Class B digital devices and Verification.

peripherals.

Class A digital devices, peripherals Verification.

and external switching power supplies.

All other devices...................... Verification.

----------------------------------------------------------------------------------------------------------------

Note to table: Where the above table indicates more than one category of authorization for a device, the party

responsible for compliance has the option to select the type of authorization.

\1\ Applications for this equipment will no longer be accepted by the Commission once domestic Telecommunication

Certification Bodies are available to certificate the equipment. See Sec. 2.960 of this chapter.

* * * * *

PART 25--SATELLITE COMMUNICATIONS

9. The authority citation for part 25 continues to read as follows:

Authority: 47 U.S.C. 701-744. Interprets or applies sec. 303, 47

U.S.C. 303. 47 U.S.C. sections 154, 301, 302, 303, 307, 309 and 332,

unless otherwise noted.

10. Section 25.200 is added to read as follows:

Sec. 25.200 Interim equipment authorization.

(a) For purposes of this section, a ``GMPCS system'' is defined as

``any satellite system, (i.e., fixed or mobile, broadband or narrow-

band, global or regional, geostationary or non-geostationary, existing

or planned) providing telecommunication services directly to end users

from a constellation of satellites.''

(b) Subsequent to receiving a blanket authorization under this

part, terminals used in conjunction with GMPCS systems, as defined

under Sec. 25.200 (a) of this part, may also obtain an equipment

authorization from the Commission in accordance with the certification

procedure for use under this part. The certification procedure is found

in part 2, subpart J of this chapter.

(c) In order to be granted certification, a transmitter shall

comply with the technical specifications in this part. In addition,

mobile earth satellite terminals for use in the band of 1610-1626.5 MHz

shall meet a specific out-of-band emissions limit. Emissions in the

band 1559-1605 MHz shall be limited to -70 dBW/MHz averaged over any 20

millisecond period for wideband signals, and a standard of -80 dBW

across within the measurement bandwidth of 700 Hz or less for

narrowband signals.

(d) Licensees and manufacturers are subject to the radiofrequency

radiation exposure requirements specified in Secs. 1.1307(b), 2.1091

and 2.1093 of this chapter, as appropriate. Applications for equipment

authorization of mobile or portable devices operating under this

section shall contain a statement confirming compliance with these

requirements for both fundamental emissions and unwanted emissions.

Technical information showing the basis for this statement shall be

submitted to the Commission upon request.

(e) Equipment authorizations issued pursuant to this section will

be conditioned on the equipment meeting all relevant technical

requirements that are adopted by the Commission in implementing the

GMPCS Arrangements.

PART 68--CONNECTION OF TERMINAL EQUIPMENT TO THE TELEPHONE NETWORK

11. The authority citation for part 68 continues to read as

follows:

Authority: 47 U.S.C. 154, 303.

12. Section 68.160 is added to read as follows:

Sec. 68.160 Designation of Telecommunication Certification Bodies

(TCBs).

(a) The Commission may designate Telecommunication Certification

Bodies (TCBs) to approve equipment as required under this part.

Certification of equipment by a TCB shall be based on an application

with all the information specified in this part. The TCB shall process

the application to determine whether the product meets the Commission's

requirements and shall issue a written grant of equipment

authorization. The grant shall identify the TCB and the source of

authority for issuing it.

(b) The Federal Communications Commission shall designate TCBs in

the United States to approve equipment subject to certification under

the Commission's rules. TCBs shall be accredited by the National

Institute of Standards and Technology (NIST) under its National

Voluntary Conformity Assessment Evaluation (NVCASE)

[[Page 4998]]

program or other recognized programs based on ISO/IEC Guide 65, to

comply with the Commission's qualification criteria for TCBs. NIST may,

in accordance with its procedures, allow other appropriately qualified

accrediting bodies to accredit TCBs and testing laboratories. TCBs

shall comply with the requirements in Sec. 68.162 of this part.

(c) In accordance with the terms of an effective bilateral or

multilateral mutual recognition agreement or arrangement (MRA) to which

the United States is a party, bodies outside the United States shall be

permitted to authorize equipment in lieu of the Commission. A body in

an MRA partner economy may authorize equipment to U.S. requirements

only if that economy permits bodies in the United States to authorize

equipment to its requirements. The authority designating these

telecommunication certification bodies shall meet the following

criteria.

(1) The organization accrediting the prospective telecommunication

certification body shall be capable of meeting the requirements and

conditions of ISO/IEC Guide 61.

(2) The organization assessing the telecommunication certification

body shall appoint a team of qualified experts to perform the

assessment covering all of the elements within the scope of

accreditation. For assessment of telecommunications equipment, the

areas of expertise to be used during the assessment shall include, but

not be limited to, electromagnetic compatibility and telecommunications

equipment (wired and wireless).

13. Section 68.162 is added to read as follows:

Sec. 68.162 Requirements for Telecommunication Certification Bodies.

(a) Telecommunication certification bodies (TCBs) designated by the

Commission, or designated by another authority pursuant to an effective

mutual recognition agreement or arrangement to which the United States

is a party, shall comply with the following requirements.

(b) Certification methodology. (1) The certification system shall

be based on type testing as identified in sub-clause 1.2(a) of ISO/IEC

Guide 65.

(2) Certification shall normally be based on testing no more than

one unmodified representative sample of each product type for which

certification is sought. Additional samples may be requested if clearly

warranted, such as when certain tests are likely to render a sample

inoperative.

(c) Criteria for designation. (1) To be designated as a TCB under

this section, an entity shall, by means of accreditation, meet all the

appropriate specifications in ISO/IEC Guide 65 for the scope of

equipment it will certify. The accreditation shall specify the group of

equipment to be certified and the applicable regulations for product

evaluation.

(2) The TCB shall demonstrate expert knowledge of the regulations

for each product with respect to which the body seeks designation. Such

expertise shall include familiarity with all applicable technical

regulations, administrative provisions or requirements, as well as the

policies and procedures used in the application thereof.

(3) The TCB shall have the technical expertise and capability to

test the equipment it will certify and shall also be accredited in

accordance with ISO/IEC Guide 25 to demonstrate it is competent to

perform such tests.

(4) The TCB shall demonstrate an ability to recognize situations

where interpretations of the regulations or test procedures may be

necessary. The appropriate key certification and laboratory personnel

shall demonstrate a knowledge of how to obtain current and correct

technical regulation interpretations. The competence of the

telecommunication certification body shall be demonstrated by

assessment. The general competence, efficiency, experience, familiarity

with technical regulations and products included in those technical

regulations, as well as compliance with applicable parts of the ISO/IEC

Guides 25 and 65, shall be taken into consideration.

(5) A TCB shall participate in any consultative activities,

identified by the Commission or NIST, to facilitate a common

understanding and interpretation of applicable regulations.

(6) The Commission will provide public notice of specific elements

of these qualification criteria that will be used to accredit TCBs.

(d) Sub-contractors. (1) In accordance with the provisions of sub-

clause 4.4 of ISO/IEC Guide 65, the testing of a product, or a portion

thereof, may be performed by a sub-contractor of a designated TCB,

provided the laboratory has been assessed by the TCB as competent and

in compliance with the applicable provisions of ISO/IEC Guide 65 and

other relevant standards and guides.

(2) When a subcontractor is used, the TCB shall be responsible for

the test results and shall maintain appropriate oversight of the

subcontractor to ensure reliability of the test results. Such oversight

shall include periodic audits of products that have been tested.

(e) Designation of TCBs. (1) The Commission will designate as a TCB

any organization that meets the qualification criteria and is

accredited by NIST or its recognized accreditor.

(2) The Commission will withdraw the designation of a TCB if the

TCB's accreditation by NIST or its recognized accreditor is withdrawn,

if the Commission determines there is just cause for withdrawing the

designation, or if the TCB requests that it no longer hold the

designation. The Commission will provide a TCB with 30 days notice of

its intention to withdraw the designation and provide the TCB with an

opportunity to respond.

(3) A list of designated TCBs will be published by the Commission.

(f) Scope of responsibility. (1) TCBs shall certify equipment in

accordance with the Commission's rules and policies.

(2) A TCB shall accept test data from any source, subject to the

requirements in ISO/IEC Guide 65, and shall not unnecessarily repeat

tests.

(3) TCBs may establish and assess fees for processing certification

applications and other tasks as required by the Commission.

(4) A TCB may rescind a grant of certification within 30 days of

grant for administrative errors. After that time, a grant can only be

revoked by the Commission. A TCB shall notify both the applicant and

the Commission when a grant is rescinded.

(5) A TCB may not:

(i) Grant a waiver of the rules, or certify equipment for which the

Commission rules or requirements do not exist or for which the

application of the rules or requirements is unclear.

(ii) Take enforcement actions.

(6) All TCB actions are subject to Commission review.

(g) Post-certification requirements. (1) A TCB shall supply a copy

of each approved application form and grant of certification to the

Commission.

(2) In accordance with ISO/IEC Guide 65, a TCB is required to

conduct appropriate surveillance activities. These activities shall be

based on type testing a few samples of the total number of product

types which the certification body has certified. Other types of

surveillance activities of a product that has been certified are

permitted, provided they are no more onerous than testing type. The

Commission may at any time request a list of products certified by the

certification body and may request and receive copies of product

evaluation reports. The Commission may also request that a TCB perform

post-market surveillance, under Commission

[[Page 4999]]

guidelines, of a specific product it has certified.

(3) If during post market surveillance of a certified product, a

certification body determines that a product fails to comply with the

applicable technical regulations, the certification body shall

immediately notify the grantee and the Commission. A follow-up report

shall also be provided within thirty days of the action taken by the

grantee to correct the situation.

(4) Where concerns arise, the TCB shall provide a copy of the

application file within 30 calendar days upon request by the Commission

to the TCB and the manufacturer. Where appropriate, the file should be

accompanied by a request for confidentiality for any material that

qualifies as trade secrets. If the application file is not provided

within 30 calendar days, a statement shall be provided to the

Commission as to why it cannot be provided.

(h) In case of a dispute with respect to designation or recognition

of a TCB and the testing or certification of products by a TCB, the

Commission will be the final arbiter. Manufacturers and designated TCBs

will be afforded at least 30 days to comment before a decision is

reached. In the case of a TCB designated or recognized, or a product

certified pursuant to an effective bilateral or multilateral mutual

recognition agreement or arrangement (MRA) to which the United States

is a party, the Commission may limit or withdraw its recognition of a

TCB designated by an MRA party and revoke the certification of products

using testing or certification provided by such a TCB. The Commission

shall consult with the Office of the United States Trade Representative

(USTR), as necessary, concerning any disputes arising under an MRA for

compliance with under the Telecommunications Trade Act of 1988 (Section

1371-1382 of the Omnibus Trade and Competitiveness Act of 1988).

[FR Doc. 99-2408 Filed 2-1-99; 8:45 am]

BILLING CODE 6712-01-P