Under the radar

If you read the stack of daily decisions put out by the Federal Communications Commission, you might be under the impression that the agency has increased its enforcement effort. You would be right. But despite the greater emphasis on enforcement, there are still areas that the feds simply ignore.

For example, everyone knows about the "color-dot" radios made popular via sales from outfits like Sam’s Club. For a relatively low price, any chump could buy a couple of VHF mobile units that were type accepted by the FCC. Although the buyer was supposed to get a license to operate those radios under Part 90, that just didn’t happen.

Because the users didn’t get a license, their operation of the radios was a clear violation of law, subject to the FCC dropping the hammer. But the hammer never fell. Why? Because the people violating the rules were consumers, and the FCC has no effective mechanism in place to go after consumers.

Illegal or unlicensed devices make it into the marketplace every day from a variety of sources. But once the device is in the hands of the user, the FCC is no longer interested in enforcing its rules. There are exceptions, of course, such as unlicensed radio operation by people using base stations, e.g. pirate broadcasters and corporations that just fail to get authorization. But a radio in the hands of John Q. Public isn’t on the FCC’s radar screen.

In case you are wondering why the FCC doesn’t go after the retail outlets for this stuff, the answer is simple in the case of many of the devices. The devices have been approved for operation by the FCC and, therefore, sales of the devices are legal. The responsibility for getting a license is not on the retailer. It’s on the customer. The sale is legal. The after-sale use isn’t.

Domestic offenders

In a twist of irony, it’s easier to violate the FCC rules in the manufacture and distribution of illegal equipment if your manufacturing facility is in the United States. Although that might sound wrong, it’s right.

If equipment is made offshore and imported into the United States, that equipment must go through U.S. Customs Service. Included in the required paperwork for the importer is evidence that the equipment complies with the FCC rules. If the importer doesn’t have an authorization issued by the FCC, or if the equipment is improperly labeled, it isn’t making it past the docks.

So, the FCC has a partner in the U.S. Customs Service in ensuring compliance with its rules. But that conscientious partner isn’t policing domestic manufacturing. And, in truth, neither is the FCC.

For example, there is a domestic manufacturer that produces dog tracking devices that attach to a hunting dog’s collar and use a yagi-type receiver to find out where ol’ Shep went off to. You can buy this dog tracking system through catalogs and over the Internet. It isn’t a secret. What also isn’t a secret is that the system has never been approved for sale by the FCC.

I contacted the FCC about this manufacturer and its illegal dog tracking device. An FCC employee told me that the commission was aware of these kinds of devices but rarely did much about them. When asked why, he started mumbling about priorities and resources. Nor did I get far when I asked, "How many resources does it take to send a letter to the manufacturer saying ‘Cut that out.’?" More mumbling.

These types of niche markets breed illegal devices and operations. Manufacturers will pick a band that holds the cost of production down and that won’t immediately be detected by co-channel users (the doggie Lojack system operates in the 216MHz–220MHz band). Then they start cranking them out with impunity—even advertising availability at shows and in trade publications. One such manufacturer said, "We’ve been getting away with it for over 20 years, so we figure the FCC just doesn’t care."

The survey says interference

When returning from a conversation with the less-than-helpful FCC employee, you’ll find that your tongue is raw from biting. What you said in moderated tones and what you wanted to say in a less diplomatic style are far different. What you wanted to say is something akin to, "You just don’t get it, do you? These people are causing harmful interference, occupying scarce spectrum, and getting rich operating a black market operation that is also anticompetitive in nature! What part of this does not motivate you to enforce your rules?!"

Let’s start with the obvious. If the device is illegal, the operation of it doesn’t appear in the FCC database. The spectrum is, therefore, available for operation of licensed radio devices. A legitimate operator gets or has a license, and without warning the value of that license is reduced or negated by the operation of the illegal device.

A particularly vexing example is surveying equipment that uses UHF channels for GPS error-correction. Manufacturers of GPS equipment for surveying have tuned these devices to a number of UHF channels that are allocated under Part 90. Most, if not all, of the available channels in the surveying equipment are already licensed to local operators for operation of community repeaters.

A community repeater working fine one day suddenly is bombarded with data tones from this surveying equipment. If the community repeater operator investigates the situation, he will come across a nice, well-meaning surveyor who apologizes for causing a problem. The equipment they are using is approved by the FCC for manufacture, so what’s the difficulty? That’s when it gets weird.

You find yourself standing there, trying to explain to a surveyor that just because the equipment is approved for use, it doesn’t mean you can use it with impunity. The FCC rules say that you have to get a license, monitor the use of the channel, and avoid interference. Good luck.

Once again, the FCC approves devices for manufacture and distribution in the marketplace, but drops the ball when it comes to regulating the actual use of these communications-destroying devices. By the way, Small Business in Telecommunications (SBT) requested that the FCC publish a public notice about this problem so that operators could use it to inform surveyors who might wish to use this problem equipment. That request and many others haven’t even netted a nod of interest from the commission.

Unfair trade

Let’s pretend that you’re a good-guy manufacturer. You want to follow the rules and make sure that your company gets all the necessary authority to produce a given device like our earlier mentioned dog tracking system. Your company is at a distinct disadvantage in the marketplace.

The cost of doing the right thing will be a portion of the overall cost of the device that needs to be recaptured on sale; therefore, you have to set a higher price for your legal device. Pricing disadvantage is a serious problem for a competitor, and so is the design process if one guy is making whatever equipment is the cheapest, while the other is designing to meet the more stringent FCC rules.

This leaves the good-guy manufacturer with a few lousy choices. The good guy can either swallow the costs and take a beating in the marketplace, or duplicate the evil practices of the other manufacturers and hope the FCC doesn’t care. There is one other choice. The good guy can decide not to produce the device and bask in the knowledge that he has done the right thing. Yeah, right.

The FCC’s refusal to take action in these areas encourages duplication and proliferation of these illegal activities. Manufacturers with the need to make earnings and compete effectively are implicitly directed to join the ranks of the non-compliant majority. Meanwhile, the FCC gently strokes its violin while the spectrum burns.

Garbage in . . .

Unfortunately, this "regulation by still life" is the norm for many kinds of activity. But rest assured that the FCC has a time-honored method of dealing with universal non-compliance—
deregulation. Or, stated another way, when the regulation gets tough, the bureaucrats get rid of the regulation.

In a recent FCC decision, the agency got rid of its pesky color-dot radio problem. It reallocated the channels that these devices operated upon to the CB radio service. That’s right. The agency admitted that the radios had turned viable spectrum into a junk band that is no longer fit for intelligent use by business. Now it is right up there with CB chat rooms where you can get recipes, talk to passing truckers, and say stuff like "What’s your handle, good buddy?"

For the manufacturers and operators of legitimate radio operations that strive to bring efficiency to business and public safety enterprises, this decision is frightening. Years of investment might be rendered worthless if some retail chain starts selling radios on your channels that the public is using to call its dogs. Maybe this wouldn’t be so vexing if the FCC did more than bury this bone of contention every time somebody raised it. But it’s hard to teach an old dog new tricks. n