SpectrumTalk

Think FAA is the Only Agency with Severe Mood Swings
in Enforcement?

As I was trapped for several hours in Dallas-Ft. Worth Airport last week in the "meltdown" of American Airlines and then waited several days for our luggage to arrive at our destination in Phoenix, I contemplated the implications of several mood swings in agency enforcement.

It appears that the root cause of the American Airlines crisis last week that stranded thousands of passengers was FAA first being too cozy with industry on enforcement issues and then suddenly flip flopping to strict enforcement. One does not want airplane mechanics making their own judgments on wiring details as opposed to what the manufacturer and FAA have found to be safe. Similarly, one does not want equipment manufacturers to make their own judgments as to what equipment emissions are safe. That's why the FCC has rules for electromagnetic compatibility (EMC) that cover incidental emissions (e.g. from PCs), inband signal powers, and out of band emissions. As I have written earlier, FCC in recent years has shown a remarkable disinterest in enforcing its EMC rules and is focused almost entirely on complaints - mainly from competitors. Unfortunately, thousands of products could be in the hands of consumers before a complaint is filed. This is one area where the broadcast establishment and I "sort of" agree.

We both have stated that enforcement is not adequate. But the broadcasters don't seem interested in improving it, rather they just accept the status quo and want to use it as a justification for rejecting the unlicensed proposals in Docket 04-186 ("TV whitespace"). By contrast, I have said that the status quo is unacceptable no matter what happens in this docket and that FCC should work with industry to develop a modest but real post market sampling program for consumer electronics that is a real deterrent to marketing equipment that does not comply with EMC rules.

In May 2004 with great fanfare FCC opened a new anechoic test chamber at its Columbia Laboratory with a ribbon cutting by Chmn. Powell. The cost of this chamber was about $1 million, the largest technical investment FCC has ever made. While the press at the time focused on the sensitivity of this chamber (since it shielded tests from local radio signals), the nerds knew that another key advantage over the previous outdoor tests is that an indoor chamber can be used 5 days a week independent of weather and that time does not have to be wasted for each day's tests moving equipment outdoors and back.

FCC Laboratory Anechoic Test Chamber

Thus it is possible to do a lot more testing in such an indoor chamber than in the previously used outdoor test range. Is FCC doing more testing? I don't see any evidence. There certainly aren't more enforcement actions against noncompliant equipment manufacturers/importers. Also in my various visits to the FCC Lab in recent months I have never seen the million dollar chamber used for post market sampling or any evidence that it is frequently used for such. From the Commission's FY 2009 Budget we have the following indication of policy in this area:

"Targets with Subordinate Measures:

o Enforce the Commission’s spectrum regulations and policies to provide certainty to spectrum users that they will not be subject to harmful interference by the use of devices that do not comply with the Commission’s rules.

• Resolve 100% of non-emergency interference complaints within one month."

Thus the stated goal to "provide certainty" is just to resolve complaints within a month. It is not to check market compliance nor to prevent problems. For the small number of tests needed to check complaints a million dollar chamber wasn't needed!

Now it is not that FCC enforcers have been totally idle. Recently the Commission announced $6 million of fines for retailers who were marketing analog TVs without the required consumer notices. (See commentary from The Onion.) But this is a politically motivated enforcement campaign in response to outside pressures. It is enforcement that is needed at this time of the DTV transition, but it just shows the "knee jerk" nature of FCC enforcement. One can look at the list of FCC enforcement actions and find hardly any actions for marketing equipment that violates EMC rules. Ironically, the DTV enforcement tsunami has resulted in many visits to retail stores by FCC agents. Unfortunately, they were so focused on TV model labeling they didn't notice any other noncompliant products. In large stores like Fry's (a West Coast chain) there are bound to be noncompliant products.

Two years ago NAB complained to the Commission that XM and Sirius were marketing devices that radiated in the FM broadcast band to sent satellite signals from the SDARS receiver to car radios, but were exceeding permitted power levels. Apparently several models had been on the market for several years. FCC verified NAB's measurements (which actually were made improperly and in a misleading way - but that is a different story) and made XM and Sirius comply. But FCC rarely learns from past actions and no one asked the question of how this happened. It happened because there is little or no postmarket sampling and manufacturers/importers know they can probably get away with murder - with at most a slap on the wrist if a competitor complains.

So independent of the Docket 04-186 issues, FCC needs a real post market enforcement program to motivate manufacturers/importers to really comply with the rules or face a finite certainty of significant enforcement. The previous post had more specific suggestions.