SpectrumTalk

Chinese Toy Recall:
Possible Lessons for the
Spectrum Community

The papers are now full of stories about the recall of more than 10 million toys from China that are dangerous due to lead paint and other issues.Most articles blame the Federal Government for insufficient vigilance on the safety of imports. In the wireless technology area there are also many foreign imports. These are required by law and FCC regulation to meet certain electromagnetic compatibility regulations in order to prevent interference to other spectrum users.

But like Lord Nelson at the Battle of Copenhagen who put his telescope to his blind eye and failed to see the signal ordering him to disengage, for more than a decade FCC has been using its blind eyes to watch over EMC compliance of radio products subject to its regulations. There has been criticism that the Consumer Product Safety Commission (CPSC) has only 15 people watching imports of products subject to its jurisdiction. I doubt if FCC has one full time equivalent (FTE). Let me emphasize that this is not the fault of the current commissioners and current top managers, but rather a situation that developed over more than a decade.

The spectrum products involved here include unlicensed Part 15 transmitters, but also include licensed transmitters and incidental emitters like personal computers and microwave ovens and radio receivers (yes, receivers have been known to cause interference in some cases)*. All get little or no market surveillance from an FCC whose limited enforcement efforts are almost exclusively complaint driven. (Generally only complaints from prominent lawyers and trade associations get any attention.)

What is the bottom line problem here? What if 10,000-100,000 or more transmitters/emitters are sold in the US with too strong out-of-band emissions in a public safety band or a valuable commercial band like a cellular band or even a broadcast band? Once they are out in the marketplace they are a lot harder to get back than lead-painted toys, especially if they perform their intended function well.

What little enforcement of equipment authorization rules done at FCC today is almost exclusively in reaction to complaints from well heeled competitors with prominent attorneys. (I recall several years ago when a former FCC chairman in private practice came in to meet with the head of OET with a cardboard box containing an AC-powered battery charger that was underselling his client. An amazing number of people in OET and EB in the next few weeks were obsessed with battery chargers.) There is virtually no market surveillance or spot checking of products or the test data that allegedly shows the products are compliant. A look at recent enforcement actions shows very few in the equipment authorization area. By the time a competitor notices a product is hurting them competitively there may be 10,000 or 100,000 units in use capable of causing interference. In general, they will stay in use until they fail of old age.

FCC's lab used to test all transmitter models before they could be sold in the US. This cause major backups in the summer when new Christmas products were being readied for shipment. Approval moved to a system where equipment was tested by private labs and then results approved by FCC and later Telecommunications Certification Bodies (TCBs) that could do all the approval themselves. At each step the Commission was promised that the resources saved in not reviewing every application would be diverted to sampling and market surveillance. But under the constant budget pressure of the last decade and the basic lack of any constituency for equipment marketing enforcement, there is little if any market surveillance and sampling. I recall in 2001 as part of the UWB policy deliberations I asked the Lab for recent test reports of personal computer emission checks and was shocked to hear that no one had ever requested such test reports from manufacturers and no one was sure how to write a letter requesting such.

The realistic sampling of equipment in stores by FCC is minimal due to budget limitations. FCC has the right to demand equipment from manufacturers/importers at no cost for testing under Section 2.945 . However, this is generally ineffective due to the "lab queen" issue. (This does not refer to FCC employees who are crossdressers, rather to the practice of sending to FCC units of equipment that are sure to pass the test.) Lab queens are produced by either modifying units to meet regulations, e.g. reducing their power, or sampling a large number of highly variable units and selecting only the units that pass.

I recall a case about 10 years ago in which there was a complaint against a 2nd tier Japanese manufacturer who was accused by a competitor of selling over powered cordless phones. The samples supplied by the competitor and samples bought by FCC were overpower, but the one sent in by the manufacturer met the regulation. Why? Opening all the units showed that the "lab queens" differed from the other units in 3 different resistors that controlled output power. Not only the values were different, but the cutting of the component leads and the solder holding them in were visibly different from all the other components. The 3 resistors had been changed after production, probably at corporate headquarters before sending them to FCC. The manufacturer was made to change new units and let off with a minor fine.

The status quo will only change if their is a constituency for enforcement. the manufacturer trade associations such as Consumer Electronics Association, Telecommunications Industry Association, and SDR Forum all seem to believe that all their members, and indeed all manufacturers, are nice people who would never make harmful products so there is no need to have more effective enforcement. Wake up! There are sleazy Far East manufacturers who make and market 10W cordless phones that work in the aviation bands and drive the FAA and aviation industry crazy. There is no limit to how depraved some marginal producers can be to maximize profit. The policy challenge is to balance costs and risks and I think the current balance is all wrong and just waiting for an import disaster like in the toy industry recently.

What should be done?

1. The manufacturer trade associations should reconsider their opposition to effective enforcement and view enforcement as in their best interest, particularly because it can limit opportunities for low cost non compliant competitors and level the playing field. Use trade associations like NAB and CTIA should also advocate equipment enforcement. This FCC will not be more aggressive about enforcement without industry support. forget what you learned in high school civics.

2. FCC should modify 2.945 to decrease the likelihood of lab queens. This could be done by requiring a notarized statement by a person subject to US jurisdiction that the units submitted were taken out of normal inventory without a priori testing and without modification subject to penalties of perjury along with a clear FCC intention of pressing DOJ for criminal prosecution of any violators.

3. Increase FCC budget for random store purchases of commercial equipment for testing.

4. Amending Part 2, Subpart J to permit the FCC to request from any grantee, e.g. company approved to manufacture, market, or import equipment, a free "coupon" permitting an FCC agent to redeem the coupon for a unit of equipment on sale at a retail store with the grantee compensating the store for reasonable costs. This would allow ready access to real samples of equipment. tested equipment would be returned to manufacturers. If there is reasonable doubt about whether FCC has authority to do this under present legislation, it should request such authority at its next oversight hearing.

Also amend Part 2, Subpart J to permit the FCC agents to select from normal warehouse inventory units to be sampled. This has been done at times in the past when inventory can be identified - usually only for the case of large importers and manufacturers. But there are lingering doubts about whether it is legal and a non cooperative manufacturer/importer might stonewall FCC legally.

5. Routinely call in for examination test data for a few per cent of all the models of electronics sold in the US for at least a spot check. The fact that this data is rarely requested may well be encouraging people to not pay for the required EMC tests. (The industry knows what is being requested and what isn't it is no secret in industry circles how little FCC enforcement is going on.) In the previously mentioned request for PC test data in 2001, it took one major manufacturer over a month to send in the requested data - I suspect he had never measured it for that model.

A little bit of enforcement goes a long way deferring antisocial behavior by manufacturers and importers. I hope the spectrum community can work together to urge FCC to step up its enforcement in this area so we never have Pandora's box opened.

Broadcast interests may see this as an argument against the Docket 04-186 white space proposals, but it really is an independent issue and needs attention whether or not the 04-186 proposals are ever adopted.

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* For over a decade the FCC turned a blind eye to repeated complaints from both VSAT interests and the Canadian Government that "fuzzbuster"-like police radar detectors, illegal in many states, had local oscillator emissions that interfered with VSATs . They were at the time not subject to regulation because 15.111 did not apply to receivers above 960 MHz. They are now subject to emission limitations , per 15.109(h), although other consumer grade receivers above 960 MHz, e.g. PCS, AWS and DBS receivers, are subject to no emission limits and testing at all! Presumably we have to wait for a tsunami of interference complaints from>960 MHz consumer receivers before FCC considers any emission regulations for them. (>960 MHz receivers were probably exempted from 15.111 decades ago because all equipment at the time at such frequencies was limited production commercial equipment used only in commercial locations. The "fuzzbuster" problem shows how wrong that assumption was. Now consumer electronics reaches as high as 77 GHz, it's just that the FCC Rules live in a time warp until the powerful interests complain.)