Offering more flexibility, the new rules are better suited to the current research and manufacturing environment.

The FCC is friendly to anyone who works on new radio technologies, whether a Ph.D. corporate researcher or a teenager making solder burns in his parents’ furniture. (A lot of the FCC engineers, we suspect, were once those teenagers.) The FCC carefully regulates radio equipment available for sale, but it also lets people build their own gear, either homebrew or from kits, with almost no regulation, and it encourages tinkering with new ideas.

Innovators who develop new radio-based products, even those ultimately meant to conform to the FCC’s technical rules, usually have to power up early models and prototypes that may not yet comply. In order to keep an eye on such activities, while still maximizing freedom in the lab, the FCC long ago set up the Experimental Radio Service. An inventor – or anyone – simply fills out a form with the location, the frequencies to be used, the power, and a few other details, and explains the purpose in a short paragraph. A few weeks later, the FCC sends a license.

The FCC has now rewritten these rules. The old form of experimental license remains available, but some new options appear as well. (Caution: the new rules depart substantially from those the FCC proposed back in 2010.) Among other changes, the new rules gather together the experimental provisions from other rule parts, including the Experimental Broadcast Stations formerly authorized under Part 74.

One problem with the old experimental regime was the need to apply for (and then wait for) a new or modified license if the research takes an unexpected direction – as it often does. Suppose an engineer is working on a new kind of unlicensed radar in the Wi-Fi band at 2400 MHz. She needs an experimental license to operate the new device, until it passes the compliance tests for FCC certification. As the research proceeds, though, the engineer might want to try designing for the somewhat different rules at 5800 GHz. But to operate in that band is unlawful, until the FCC updates the license – a process that can take several weeks.

Program Experimental Licenses

The FCC addresses the problem of changing technical needs with a new category of “Program Experimental License.” Eligible entities include: colleges or universities with an accredited graduate research program in engineering; research laboratories; hospitals or health care institutions (but not for clinical trials; see below); manufacturers of radio-frequency (RF) equipment; and manufacturers that integrate RF equipment into their end products. (As we read the rule, a college or university is eligible to use this kind of license for projects outside the engineering graduate program, so long as it has  such a program.) An eligible entity must also have a defined geographic area, such as a building or campus, and must certify that it either has “demonstrated experience with RF technology” or has partnered with an entity having that expertise. Applicants wishing to operate at multiple locations will need a separate license for each.

The licensing rules have complex requirements meant to minimize the likelihood of interference to spectrum incumbents. But licensees can apply for any frequencies they want except for the particularly sensitive “restricted bands” listed in Section 15.205(a). An applicant needing to operate in these bands can instead apply for a conventional experimental license. Most frequencies above 38.6 GHz are also available, despite their all being denominated as “restricted,” except for those allocated to radio astronomy and a few others. Special requirements apply to frequencies used for commercial mobile (cell, PCS, 3G, 4G, and more), emergency notifications, and public safety.

At least ten calendar days before each experiment, the licensee must post the following information on the FCC website:

  • a narrative statement describing the experiment, including measures to avoid causing harmful interference to any existing service licensee in the proposed band;
  • contact information for the researcher in charge of the experiment;
  • contact information for a “stop buzzer” point of contact – a person who can turn off the equipment if interference occurs;
  • technical details including frequency, power, bandwidth, modulation, location, number of units, etc.; and
  • for commercial mobile, emergency notification, and public safety frequencies, a list of potentially affected licensees.

Licensees in other services that fear interference from an experimental operation are expected to contact the experimental licensee with their concerns. Only the FCC can stop the experiment from proceeding, once the ten-day notice period has elapsed. Experiments that use federal (or shared federal-private spectrum) may need longer than ten days for coordination.

An applicant that seeks non-disclosure of proprietary information as to the justification for its application cannot use a Program Experimental License, but should apply for a conventional experimental license. A Program Experimental applicant can, however, request non-disclosure of the notification information listed above, if the information otherwise qualifies for non-disclosure.

Within 30 days after the completion of each experiment, the licensee must file a narrative statement describing the results, including any interference incidents and steps taken to resolve them.

A new rule allows the FCC to designate a defined geographic area and frequency range as an “innovation zone.” Program Experimental Licensees who want to operate in that zone and within the announced technical parameters do not need further authorization.

Medical Testing License

Tests of medical equipment, other than in clinical trials, can use a Program Experimental License. Clinical trials, however, need a different approach. A Medical Testing License is available for that purpose. Eligibility is limited to “health care facilities” as defined in Section 95.1103(b), although testing is also allowed at other locations, such as patients’ homes. The license can be used only for testing a device “that uses RF wireless technology or communications functions for diagnosis, treatment, or patient monitoring.” The prior notification requirements for a Program Experimental License apply here as well. Medical Testing Licensees must file a yearly report that includes a list of tests and a description of each, with the equipment tested and the results of the test, noting any interference incidents and their resolution.

Market Trials

The existing experimental rules allow for market trials, under very limited circumstances, of equipment not yet shown to comply with the FCC’s technical rules. The new rules expand the opportunity for these trials, but not by much. Experimental licensees can now sell such equipment to one another – for example, a cell phone manufacturer can sell not-yet-certified models to a wireless service provider – but any transactions with consumers must take the form of a lease, not a sale, and the equipment must be collected or disabled at the close of the trial.

Medical devices for use in a clinical trial can also be the subject of a market study.

The FCC has clarified and slightly expanded the long-standing rules on when and where a not-yet-authorized device may operate. Operation of such devices in residential areas is now permitted, for the first time, if under a carrier’s license and with the carrier’s consent. The sale of uncertified “evaluation kits,” formerly prohibited, is now allowed with appropriate notices to the buyer.

Compliance Testing License

The former rules allowed a commercial test lab to operate a device for the purpose of assessing compliance with FCC technical rules, but left unanswered the question whether it needed a license to operate a candidate device that uses a licensed band, such as a cell phone. The new rules resolve that issue with a special form of experimental license available only to test labs.

Importation limits

Not-yet-authorized devices could formerly be imported in quantities of 2,000 for devices to be used in a licensed service, and 200 for others. The maximum will now be set at 4,000 for all types of devices.

Some of the new rules will take effect as usual 30 days after publication in the Federal Register. Others will require approval by the Office of Management and Budget, and will take longer. We will keep you informed.