In a Report & Order (R&O) -- FCC 13-15 -- released February 4, the FCC adopted numerous changes to its Experimental Radio Service (Part 5), revising and streamlining its rules. With the new rules, the FCC states that the Experimental Radio Service will have “a more flexible framework to keep pace with the speed of modern technological change, while continuing to provide an environment where creativity can thrive.” The new rules will become effective 30 days after being published in the Federal Register. No date has yet been set for publication.

The FCC’s rules contain numerous provisions for experimentation and development of new radio equipment and techniques. The R&O noted that the Experimental Radio Service rules “prescribe the manner in which the radio spectrum may be made available to manufacturers, inventors, entrepreneurs and students to experiment with new radio technologies, equipment designs, characteristics of radio wave propagation, or service concepts related to the use of the radio spectrum. To encourage innovation, the Part 5 rules provide flexibility regarding allowable frequency range, power and emissions. In exchange for this flexibility, experimental operations are not protected from harmful interference from allocated services, and Experimental Radio Service licensees must not cause harmful interference to stations of authorized services, including secondary services.”

To accomplish this transition, the FCC -- through the R&O -- is creating three new types of Experimental Radio Service licenses: the Program License, the Medical Testing License and the Compliance Testing License. According to the FCC, this new license structure will “benefit the development of new technologies, expedite their introduction to the marketplace and unleash the full power of innovators to keep the United States at the forefront of the communications industry. Our actions also modify the market trial rules to eliminate confusion and more clearly articulate our policies with respect to marketing products prior to equipment certification. We believe that these actions will remove regulatory barriers to experimentation, thereby permitting institutions to move from concept to experimentation to finished product more rapidly and to more quickly implement creative problem-solving methodologies.”

These licensees will be required to post technical details of the experiment in advance, to conduct due diligence in their local operating environment to identify any interference risks and to plan accordingly to avoid causing harmful interference to incumbent licensees. They will also be required to designate a “stop buzzer” point-of-contact with the ability to cease operation immediately in the event of harmful interference.

The R&O adopted the following changes to the Experimental Radio Service:

• Consolidates rules for broadcasting experiments (currently in Parts 73 and 74) into a new subpart within Part 5 and eliminates developmental licensing rules in several FCC rules parts so that all experimental authority will be under the Part 5 ERS Rules, providing clear and consistent guidelines to applicants for all types of experimentation.
• Establishes program experimental licenses for colleges and universities with an accredited graduate research program in engineering, research laboratories, manufacturers of radio frequency (RF) equipment, manufacturers that integrate radio frequency equipment into their end products and health care institutions to allow broad experimental authority under a single license.
• Creates an FCC website where program licensees will register individual experiments to be conducted under a program license at least 10 days prior to commencing the experiment.
• Requires that each program licensee post on the FCC website a report for each individual experiment completed, including a description of its results.
• Establishes a compliance testing license, which will be available to FCC-recognized testing laboratories that test RF devices for certification purposes.
• Establishes a medical testing license to permit health care facilities to undertake clinical trials of cutting-edge wireless medical technologies.
• Establishes a process whereby the FCC can specify innovation zones where program licensees may operate in addition to their authorized area of operations.
• Broadens opportunities for market trials by adopting a new subpart within the ERS rules that contains provisions for product developmental trials, as well as market trials, and modifies the rules to clarify when operation or marketing of RF devices is permitted prior to equipment certification, including the number of devices that can be imported for such purposes.
• Makes other targeted changes to the FCC’s experimental rules and procedures.

In November 2010, the FCC issued a Notice of Proposed Rulemaking (NPRM) that sought to implement portions of the National Broadband Plan. In the NPRM, the FCC solicited comments on several proposed changes to the Experimental Radio Service rules “to provide additional flexibility to innovators, so that they can more quickly transform their ideas to fully functional new products and services that meet consumer needs.”

The ARRL filed reply comments to the NPRM, saying that it was “generally supportive of the Commission’s Part 5 rules in their present configuration for experimental licensing and issuance of Special Temporary Authorizations (STAs). The current Part 5 rules provide a very flexible, well-administered and robust venue for the development of new technologies and products. The ARRL and individual Amateur Radio operators have applied for and been granted Experimental licenses and STAs from time to time in those relatively rare cases in which the Part 97 service rules are not sufficiently flexible to permit experimentation with new technologies or refinements of existing technologies, or for technical educational purposes.”

In its reply comments, the ARRL pointed out that there are “notable exceptions to this generalized conclusion, however. Severe interference to Amateur Radio operations over wide areas has occurred in certain instances, and in those cases, the Commission has exhibited a notable inability or unwillingness to respond to them,” specifically issues pertaining to Broadband over Power Lines (BPL).

The ARRL noted in its comments that it had concerns over the FCC’s ability to enforce the rules on those experimenters radiating harmful interference to existing services when it cannot presently do so now. “[I]t is unclear how that fundamental principle can be enforced in such an unregulated environment when it is not enforced now. The ARRL suggests that it cannot. The NPRM states that the reporting requirements that would be applicable would be the periodic filing of a narrative report. Nothing about this process necessitates any prior, private sector coordination with incumbent licensees within international and domestic allocations. Those allocations were the result of careful planning, and any divergence from the allocation planning should necessitate a compatibility analysis, to be done either by the applicant or by the Commission staff. The NPRM, however, does not require any advance showing or even a representation by the applicant of compatibility with incumbent licensees; and nothing is proposed that would obligate the qualified research institutions to demonstrate ex ante that interference will not be caused to licensed radio services from the broad course of experimentation to be undertaken.”

The ARRL stated that there was “great concern” that the FCC had proposed “virtually no limits proposed” on the frequency bands that are available for these new classes of experimental license: “The NPRM stated that the Part 15 restricted bands would be excluded. After some discussion of the use of the bands above 38.6 GHz, the Commission refused to restrict access to those bands except those that are listed in footnote US246 of the Table of Frequency Allocations. Other than the Part 15 restricted bands, therefore, the Commission ‘would permit licensees to conduct experiments on all other frequencies.’ This is vastly overbroad authority. There is no indication that research institutions are skilled in interference avoidance or have any incentive to avoid interference to incumbent licensees. High-Frequency (HF) bands between 3 and 30 MHz, for example, which have worldwide propagation capabilities and potentially very large interference contours, should be much more carefully regulated than those bands which have a high re-use capacity, such as those above 40 GHz. In some bands used by Amateur Radio operators at HF, VHF, UHF and in the microwave ranges, there are exceptionally weak-signal communications being conducted on an ongoing, daily basis which cannot tolerate co-channel experimental operation, even if not geographically co-located with experimental operations.”

The ARRL argued that, with appropriate notifications to Amateur Radio operators, medical equipment experiments could be conducted in amateur allocations, but it also contended that the ubiquitous and frequency-agile nature of Amateur Radio spectrum use makes such spectrum largely unsuitable for any medical equipment experimentation. The ARRL maintained in its comments that only medical facilities -- and not manufacturers -- should be eligible for a medical program license and that experimenters are obligated to address interference susceptibility issues before commencement of experimental operations and affirmatively assume all responsibility for such interference

“We note again that harmful interference caused by an experimental licensee to any licensed service is unacceptable, and thus we find no need to exclude certain Amateur Radio bands from potential use by medical testing licensees, the FCC said in the R&O. “More generally, we do not find the concerns raised regarding medical experimental licenses to be fundamentally different than the concerns raised about research program experimental licenses, which we [have] already address[ed]. In particular, any Part 5 licensee, including a medical testing licensee, will be responsible for ensuring that harmful interference is not caused to authorized spectrum users. Similarly, medical testing licensees must ensure that their devices are immune to interference effects from authorized services sharing the same bands as their devices. Testing under a medical testing license will allow for such testing. Thus, we will not restrict medical testing licensees from operating in any of the specific bands noted by commenters,” including the ARRL.

“While the FCC did not incorporate every suggestion offered by the ARRL, the new rules as adopted depart significantly from the Commission’s original proposals and are generally responsive to the comments filed, including ours," commented ARRL Chief Executive Officer David Sumner, K1ZZ. “Our initial impression is that they represent a reasonable balance between the interests of incumbent licensees and the need for greater experimental flexibility. If after review, any ARRL member has concerns that have not been adequately addressed in the Report & Order, I invite him or her to contact me as we consider whether any additional filings by the ARRL are necessary in order to protect the interests of the Amateur Radio Service.”