FCC Equipment Certifications on Hold Until Federal Government Reopens

With 2019 dubbed the year of 5G and companies vying to compete in the new citizens broadband radio service and other bands, the federal shutdown comes at a bad time, industry officials said last week. Every cellphone, TV, computer or other device sold in the U.S. emits a unique RF signature and must be cleared by the FCC. With the agency mostly shuttered as of Thursday, those clearances can no longer take place.

Parts of the government have been closed since Dec. 22, in what will soon be the second longest federal shutdown in history. The 2013 shutdown ran 16 days, with the FCC offline for the duration.

The impasse between President Donald Trump and congressional Democratic leaders over border wall funding that prompted the shutdown continued Friday. Trump acknowledged he told Democrats during a Friday meeting he's willing to allow the shutdown to continue for years but believed it was a “very productive” discussion. “I don't think it will, but I'm prepared” for that possibility, he said during a news conference. “We're all on the same path in terms of wanting to get government open.”

The House passed two funding bills Thursday aimed at ending the shutdown. They aren't expected to get approval from Trump or the Senate. The measures included a continuing resolution to temporarily fund the Department of Homeland Security through Feb. 8, sans the border wall funding Trump sought. The other bill would fully fund the FCC, FTC and other agencies whose FY 2019 appropriations bills weren't previously approved. “We cannot resolve this until we open up government, and we made that very clear” to Trump, Speaker Nancy Pelosi, D-Calif., said during a Friday news conference.

The Telecommunications Industry Association hopes the FCC closure isn’t “prolonged” given the role the agency plays in equipment approvals, said Senior Vice President Cinnamon Rogers. “Consumers, organizations, the public safety community, and other end users that depend upon this timely approval process will be negatively impacted the longer it takes to reopen,” Rogers said. “While accredited private, third-party testing laboratories can continue certifying equipment throughout the closure, they will not be able to obtain the necessary FCC approvals to bring products and devices to market.” Lengthy closure would affect “new products and experimental licenses for technologies such as those supporting 5G rollouts and next-generation technologies,” Rogers said.

The shutdown “is going to be horrible” for device approvals, at least if it goes on for any notable length, said Laura Phillips, Drinker Biddle wireline and wireless lawyer. She said with CES starting Tuesday, presumably numerous device-makers got approvals in anticipation, and the FCC has more flexible rules than many countries about importation of devices for trade shows and product testing. The longer the hiatus stretches, a company that wants to import products for commercial launch but hasn’t received agency approval is “stuck until the FCC reopens,” she said. That could be particularly problematic with the race on for 5G, she said. Hogan Lovells had warned of the negative effects on equipment approvals during the 2013 shutdown (see 1310110049).

“A shutdown of the FCC is not helpful, particularly given spectrum work that the commission is engaged in this year,” said Kalpak Gude, Swarm Technologies general counsel. “The rollout of CBRS, along with decisions in the 3.7-4.2 GHz band, 6 GHz band and various portions of the [millimeter-wave] bands are critical to the deployment of 5G and the next-generation broadband networks,” Gude said. “We look forward to the FCC opening for business again as soon as possible.”

Work on certification continues at labs, said Doug Brake, director-broadband and spectrum policy at the Information Technology and Innovation Foundation. "If this shutdown drags on much longer, it could start to be pretty disruptive to process of getting new 5G equipment and devices out into the wild.”

"Using shutdowns to achieve policy goals is extremely unpatriotic, but it’s easy to overstate their effect on innovation," said network architect Richard Bennett. "New wireless devices for unlicensed bands only need to be approved once, so the shutdown only hurts new products not yet on the market."

“Here’s an idea: Use the $5 billion in funding at the heart of this dispute to bring #broadband to rural America,” Commissioner Jessica Rosenworcel tweeted Thursday. “Instead of stalling during this impasse, we could reboot our most remote communities for the digital age.” That amount is about what Trump seeks for a border wall.

The FCC remains vigilant even as the shutdown continues, Chairman Ajit Pai tweeted in response to a suggestion it's time to relax practices on words you can’t say on broadcasts: “I'll be on the job for the duration and there's also a sufficiently long statute of limitations … so I'd advise against trying any &$^#*%!”

Pai and Commissioner Brendan Carr were both scheduled to speak at CES this week. They confirmed they canceled the trip because of the shutdown, as expected (see Notebook at end 1812270042).

The FCC clarified Friday petitions for reconsideration on revised rules for the 3.5 GHz citizens broadband radio service band remain due Monday. Commissioners approved the rules in October (see 1810160068), over a dissent by Rosenworcel. The agency clarified the matter an auction-related matter, on which work continues despite the shutdown.