1. Testing Newly-Approved Technologies: Challenges and Solutions Mitchell Lazarus 703-812-0440 | lazarus@fhhlaw.com April 10, 2014 Testing Newly-Approved Technologies: Challenges and Solutions Mitchell Lazarus 703-812-0440 | lazarus@fhhlaw.com April 10, 2014

2. Innovator’s Tasks 1.Invent device 2.Obtain FCC waiver or rule change  can entail substantial delay:  technical waiver takes about 2 years  technical rulemaking takes 2-5 years 3.Obtain FCC certification  can take several more months. 1

3. Delays Due to Testing  New technologies may require new compliance test procedures  Even after FCC settles on procedures:  FCC may want to try out procedures  labs and TCBs will consult with FCC on how procedures work  client may have last-minute design issues, e.g.:  needed test modes missing from device software  problems with out-of-band emissions  commercial labs may have to acquire equipment, train personnel  testing takes longer than for established technologies. 2

4. Consequences of Delay  technology becomes outdated  investors pull out  customers go elsewhere  key employees leave  businesses fail  people die. 3

5. Rulemakings for New Technologies  Outcomes apply to everyone  Legal processes are uniform  set by Administrative Procedure Act  public comment (nearly) always required  Test procedures usually considered along with technical rules  often topic of public comment  sometimes topic of vigorous dispute  Rulemaking examples … 4

6. Level Probing Radars – 1 5  Measure quantity of materials, liquid depth outdoors  wideband operation  traditional rules set limit on transmitted (downward) emissions  interference arises from scattered (horizontal) emissions difficult to measure reliably.

7. Level Probing Radars – 2  New rules require boresight measurement  seeking max. horizontal emissions of –41.3 dBm  boresight emissions limits exceed that level by 22–38 dB, depending on band 6  allows for losses due to scattering, etc.  Authorized in three bands: 5.925–7.25, 24.05–29,75–85 GHz  Rules took effect April 7  FCC lab issued detailed draft KDB.

8. Broadband over Power Line – 1  Communications over power distribution lines at 1.7-80 MHz  regulated devices: couplers take signal off line, feed to premises  typically one coupler per 3-8 houses  only one coupler per several blocks works at one time  Compliance testing inherently difficult  FCC requires testing in situ: low signal, high noise  Detailed testing guidance in Report & Order  FCC engineers worked at manufacturers’ prototype houses. 7

9. Broadband over Power Line – 2  Amateur radio licensees and ARRL filed 6,000+ oppositions:  claimed power lines act as city-sized antennas  BPL providers argued that couplers act as isolated point sources  agreed to rules that turn down or turn off couplers that cause interference  Timetable:  2003-04-28 Notice of Inquiry  2004-02-23 NPRM  2004-10-28 Report and Order (18 months after NOI)  2006-08-07 Order on Reconsideration  2006-08-28 first certification (22 months after R&O). 8

10. Broadband over Power Line – 3  Dispute throughout proceeding over extrapolation factor:  Amateur radio interests favored 20 dB/decade at all frequencies  challenged 40 dB/decade in U.S. Court of Appeals  court sent back to FCC for second look  FCC reaffirmed. 9 Frequency< 30 MHz> 30 MHz Distance30Meters10 Meters Extrapolation40 dB/decade20 dB/decade Implication Point source (1/r²) Line source (1/r)

11. Ultra-Wideband  Authorized low-emission signals over very wide bandwidth  eight types of devices; each has different rules  max emissions for any device in any band: –41.3 dBm/MHz  lower in some bands  Testing challenges  Class B digital emissions can exceed intentional emissions  FCC specified procedures to isolate digital emissions  GPS band emissions as low as –85.3 dBm  Timetable:  1998-09-01 Notice of Inquiry  2000-05-11 Notice of Proposed Rulemaking  2002-04-22 First Report and Order (44 months after NOI)  2002-09-12 first certification (5 months after R&O). 10

12. TV Band (“White Space”) Devices  Downside risk: interference to broadcast TV, other services  FCC proceeded with great caution:  multiple successive rule modifications  live field tests in multiple kinds of environments  highly detailed test procedures  initial roll-outs limited to small areas  live, public testing of candidate database managers  Timetable:  Dec. 2002: proceeding began  Dec. 2012: first large-scale roll-out (after 10 years)  so far only fixed devices have been certified. 11

13. Waivers for New Technologies  Process driven by waiver proponent  no required procedure; can vary  FCC usually seeks public comment  waiver initially applies only to company that asked for it  central issue is usually technical rules  FCC may not look at compliance testing until prompted by client (or TCB)  Examples … 12

14. Surveillance Robot – 1 13  Police surveillance robot  steered by remote control  transmits analog video back to controller  manufacturer sought 430-448 MHz (federal radar & amateur)  dozens of police departments wrote to the FCC in support  amateurs strongly opposed  FCC authorized.

15. Surveillance Robot – 2  Timetable:  2008-01-11 waiver requested  2010-02-23 waiver granted (25 months after request)  2010-04-22 certification granted (two months after waiver)  2012-02-06 first licenses granted (21 months after certification)  Licensing delay due in part to challenges to certification … 14

16. Surveillance Robot – 3 15  First model had B/W video, no sound  measured bandwidth per required procedure: 100 kHz  Opponents: analog video is “inevitably on the order of 5.75 MHz”  demanded that certification be set aside  FCC retained certification, granted licenses (after delay).

17. Airport Body Scanners – 1 16  Uses fast sweep 24.25–30 GHz  sweep takes 5.2 microseconds (pauses for 2.6 microseconds)  sweep repeats twice for each of 192 antennas on vertical mast  mast sequence repeats for each of 210 rotating mast positions  complete scan uses 80,640 sweeps  takes less than 2 seconds (including mast rotation)  software processes reflections into image.

18. Airport Body Scanners – 2  Compliance issues:  Sec. 15.31(c) requires measurement with sweep stopped  Sec. 15.35(b) sets 20 dB peak-to-average limit  FCC waived both rules. 17

19. Airport Body Scanners – 3  Timetable:  2004-08-18 waiver requested  2006-08-04 waiver granted (24 months after request)  2006-08-22 certification granted (18 days after waiver)  FCC allowed certification process to begin while waiver was pending  FCC conducted tests at Columbia lab  waiver order had detailed guidance on testing. 18

20. Conclusion  Delays are reduced when rulemaking or waiver order has clear guidance on testing  How labs and TCBs can help innovators:  if asked, become involved early  deal with the right person at the client (not the lawyer)  the client may not know what services they need; tell them  and may not know what information you need; ask them  be creative on test procedures  if guidance is needed, go to the FCC promptly  for novel questions, KDB may not be the best place to start  but if rules and procedures are clear, do not ask the FCC  Time is always critical. 19

21. 20 Questions? Mitchell Lazarus 703-812-0440 | lazarus@fhhlaw.com