We examine the First Report and Order and the principal changes in more detail in the referenced advisory.

Briefly, the FCC eliminated the verification and Declaration of Conformity (“DoC”) self-approval procedures from its rules, subject to a one-year transition. In their place, there will be a new procedure covering the same categories of devices now subject to one or the other of the existing procedures. The Supplier’s Declaration of Conformity (“SDoc”) process amalgamates certain pieces of the two existing procedures and implements some entirely new requirements. Among other things, testing by accredited laboratories will not be required for devices qualifying for SDoC treatment, although the Commission may ask for test records. And the FCC also makes clear that users must be apprised of the party responsible for compliance, be provided appropriate contact information, and the responsible party must have a U.S. presence. Any equipment self-approved using the verification or DoC process prior to the end of the one-year transition period will enjoy a valid authorization for marketing and operation purposes in perpetuity, provided the equipment is not modified so as to require a new authorization

In addition, the Commission codified and refined when e-labeling will be permitted to meet certain labeling and compliance statement requirement for RF devices that have integrated digital displays. This action implements certain portions of the Enhance Labeling, Accessing, and Branding of Electronic Licenses Act (“E-LABEL Act”). The FCC adopted a maximum “three step” access requirement when electronic labeling is permissible and utilized, noting that the FCC’s Office of Engineering and Technology (“OET”) will provide guidance in response to specific questions regarding compliance via the KDB inquiry process. (Electronic labeling is never mandatory.) Step one would be a user accessing the device settings menu on the digital display. As an example of one “characteristic sequence,” accessing a submenu of legal information in step two and then a further submenu of FCC compliance information in step three would qualify. However, recognizing that there may be a lack of clarity in specific situations, the FCC directed the Office of Engineering and Technology (“OET”) to continue to provide guidance in response to specific questions regarding compliance via the KDB inquiry process. The e-labeling rules address certain specific and general scenarios exceptions where e-labeling will not be permitted, caution that temporary labels must still be used where a manufacturer exercises the e-labeling option, and require that appropriate instruction be provided separately for accessing the electronic labeling and compliance information. E-labeling is never mandatory.

Further, the Commission streamlined some aspects its importation rules, including the elimination of the requirement to file FCC Form 740 customs declarations. Yet, certain obligations of the Commission’s importation rules remain, and the FCC clarified the obligations of the responsible party, for imported devices, to determine and to be able to demonstrate compliance. The FCC observed that it is not changing any regulations of Customs and Border Patrol (“CBP”) and will not be seeking any changes from CBP. The agency also modified its rules to increase the number of devices that could be imported for trade show purposes and retained (and clarified) an importation exemption that applies to unintentional radiators that operate only on low level battery power, such as greeting cards, calculators, and quartz watches.

Finally, the Commission modified its rules on measurement procedures to include more direct cross-references to guidance from the FCC Laboratory’s Knowledge Database (“KDB”) and made other rules changes to clean up and clarify rules regarding the applicability of and certain alternatives to certain measurement procedures referenced in the rules, including ANSI C63.4-2014, ANSI C63.10-2013, and ANSI C63.26-2015.

CBP is deploying a new electronic filing system, the Automated Commercial Environment (ACE), which will not be capable of accepting Form 740 information without significant modification and which is only scheduled to become completely operational as of December 2016. Currently, all FCC Form 740 filings are made electronically through CBP’s current system, the Automated Commercial System (ACS), with only relatively few filings made via paper with CBP and the FCC. The ACS is scheduled to no longer accept electronic filings of Form 740 as of July 1, 2016. Without a waiver, and until the ACE can accept Form 740, the Commission expects a massive influx of paper filings after July 1, 2016, upwards of 20,000 filings at both the FCC and CBP, a tremendous burden on both filers and agencies alike. The Commission is therefore suspending the required documentation and submission rules (47 USC §§ 2.2103 and 2.1205) so as to avoid uncertainty as to how soon after December 31, 2016 the ACE may be able to accept Form 740.

To be clear, until July 1, 2016, entities importing RF devices must continue to submit declarations to CBP either by completing Form 740 and attaching a copy to its customs import papers at ports of entry or by submitting the required information electronically with its entry documentation submission through the ACS.

In a Notice of Proposed Rulemaking adopted in July of this year, the Commission proposed to amend the required declaration rule (§ 2.1203) and remove the filing requirements (§2.1205). Given the complexity of the rulemaking, the Commission opted to clarify that it is temporarily suspending the rules for six months as of June 31, 2106, giving itself time to further investigate whether to eliminate, modify or retain the two rules.

During the six month suspension, the restrictions on marketing RF devices, including importation of such devices, will still apply fully. In short, importers would do well to keep in mind that they must still comply with FCC's marketing rules for RF devices under § 2.803: "no person may market a radio frequency device" unless the device has either been authorized and is properly identified and labeled; complies with all technical labeling, identification and administrative requirements; or for those devices not requiring an equipment authorization but compliance with specified technical standards prior to use, complies with all applicable, technical, labeling, identification, and administrative requirements.” (Certain exemptions from the marketing rule exist.) In addition, the Suspension Order will not prevent FCC representatives from inspecting or testing any imported RF device for compliance with the technical rules. And any required importation-related filings with other federal agencies that may regulate particular RF devices are unaffected by the FCC’s Suspension Order. Nonetheless, importers will no doubt appreciate the break from this one piece of bureaucratic red-tape.

The Commission will likely publish more on the fate of Sections 2.2103 and 2.2105 as it progresses in its analysis. Importers should keep abreast of Commission decisions whether to extend the waiver regarding Form 740 (which the FCC’s Office of Engineering and Technology (OET) has received delegated authority to do through the end of the current rulemaking), make the suspension permanent, or resume or modify the obligations to submit the Form, so as to be sure of their obligations come January 1, 2017.