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Demise of FCC Form 740 Along with the Rest of Spectrum Enforcement

Today the FCC website had the following surprising headline

October 19, 2015 - Order
FCC Form 740 Suspension Order

For those of you not familiar with the Form 740, it is the form needed to import electronics equipment that is FCC-regulated, or potentially FCC-regulated, into the USA. Below is a key section of the form:

Part of present Form 740

Note that the importer or consignee has to certify subject to criminal penalties that the items have been issued a grant of equipment authorization. In view of the recent VW kerfuffle perhaps FCC should up the ante and require a statement both that there is a grant and that the equipment has hardware and software that is consistent, within normal commercial practices, with what was approved by FCC - which is most cases was actually a TCB operating on behalf of FCC.

FCC had previously proposed to delete the Form 740 filing requirements in the NPRM of Docket 15-170 stating (at para. 119)

We also question whether the Form 740 requirement continues to be useful for us to identify non-compliant RF devices and take appropriate follow-up action. The continuation of the burden of filing Form 740 no longer appears justified and we propose to eliminate the requirement. We seek comment on this conclusion and the observations on which it is based. Parties are invited to identify any benefits we could derive by continuing to collect the Form 740 information, in its current form or a modified form, and specifically to comment on whether and how any of the underlying objectives of our equipment authorization program would go unmet if we eliminate our existing means of collecting this data.

While the form may not allow ready identification of "non-compliant equipment", the threat of criminal prosecution under 18 USC § 1001 might be a real deterrent to such importation if FCC really cared about spectrum enforcement. But as we have written recently there are serious questions whether FCC cares about any type of spectrum enforcement.

Recall the chart from the consultant's report used to justify spectrum enforcement downsizing that we have used several time before:

Spectrum seems to be EB's lowest priority. And what little interest they have seems to be ex post facto enforcement of public safety interference, with maybe a little time for broadcast pirates. Ex ante enforcement of equipment marketing has been low on both OET's and EB's agenda for more than a decade.

Now Marcus Spectrum Solutions LLC does not own any Title III radio licenses, let alone ones that are worth billions of dollars. But since the fair market price of spectrum is in the range of $0.50 - $2/MHz-pop there certain are firms - and maybe even individuals - who own billions of dollars worth of licenses. But if I was responsible for such licenses and accountable to shareholders I would be very nervous about the sudden demise of the Form 740 along with FCC's ever shrinking interest in all spectrum enforcement.

The Report and Order in Docket 13-44 had some improvements related to enforcement and post-market samples: it allowed for some FCC involvement in TCB sampling of production units (para. 27), but it still limits sampling to 5% and does not address purchasing units at the retail level where they can not be tampered with as in the case of "lab queens"/"golden apples" that are selected for testing because of superior performance or possibly even modification à la VW emission tests. It also requires that TCBs only test units made by their own clients - a certain conflict of interest.

So given FCC decreasing interest in spectrum enforcement, the new 740 Order should be no surprise, but maybe the major spectrum licensees as well as legitimate manufacturers of radio equipment should challenge it forcefully?

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