**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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**REPORT AND ORDER**

**Adopted:** March 10, 2005 **Released:** March 11, 2005

By the Commission: Commissioner Adelstein issuing a statement.

Paragraph

I. Introduction [1](#introduction)

II\. Background 5

III\. DISCUSSION 18

A. Cognitive Radio Technology Developments 24

B. Enabling cognitive and software defined radio 36

1\. Cognitive and software defined radio security 39

2\. Submission of radio software 63

3\. Automatic frequency selection by unlicensed devices 72

C. Interruptible Spectrum Leasing 80

IV\. Procedural matters 94

V. ordering clauses 98

Appendix A: FINAL Rule Changes

Appendix B: LIST OF COMMENTING PARTIES

Appendix C: FINAL Regulatory Flexibility Analysis

# Introduction

1.  Advances in technology are creating the potential for radio systems
    to use radio spectrum more intensively and more efficiently than in
    the past. Perhaps none of these advances holds greater potential for
    literally transforming the use of spectrum in the years to come than
    the development of software-defined and cognitive, or "smart,"
    radios. Regardless of the regulatory model -- licensed, unlicensed,
    or other new models -- these technologies are allowing and will
    increasingly allow more intensive access to, and use of, spectrum
    than possible with traditional, hardware-based radio systems.

2.  Software defined and relatively simple cognitive radio systems are
    already in use today. They include current cellular radio systems
    with capabilities such as transmit power control, handoff
    reconfiguration, and real time network control such as registration
    and control channel signaling. In addition, wireless local area
    networks are currently using adaptive techniques for channel
    identification, dynamic frequency selection, and adaptive modulation
    schemes for varying data throughput. The Commission has recognized
    cognitive capabilities in the rules as a means of allowing more
    efficient spectrum use.[^1] Multiple organizations such as the
    Software Defined Radio Forum and the European Union are dealing with
    specific technical issues of importance to the deployment of
    software defined and cognitive radios. Numerous companies, often
    working with governmental agencies, are actively developing new
    products to take advantage of these capabilities. For example, one
    manufacturer has developed and obtained approval for a cellular base
    station that is designed to be remotely modified by software to
    enable operation with different modulation formats, thereby allowing
    a single base station to communicate with handsets employing
    different transmission formats.[^2] We expect to see additional
    software-based products with new capabilities over the next few
    years.

3.  Some parties envision that the full development of cognitive radio
    capabilities will, or should, lead to a vastly different model for
    spectrum use. These "futurists" see "smart radios" operating on an
    opportunistic basis, finding idle spectrum, using it as they need,
    then vacating the band for others to use, all without human
    intervention. This model presumes no need for spectrum policy,
    allocation tables, or regulatory bodies to manage spectrum
    resources. While we recognize that this model exists, we also
    believe that many technical, cost, and business issues will need to
    be addressed in the marketplace before widespread deployment of such
    radios may take place. Therefore, we need not, and do not, address
    today the potential implications of such a radical paradigm shift.
    We do need to consider, however, whether the advent of these ongoing
    developments in software-defined and cognitive or smart radios
    require changes or clarifications in our current rules and
    procedures. We neither wish to have our processes inadvertently be a
    barrier to the development and deployment of these technologies nor
    wish to permit the widespread deployment of radios easily
    susceptible of being misused to cause harmful interference to
    others.

4.  In this Report and Order, we thus continue the process of modifying
    our rules to reflect these ongoing technical developments in radio
    technologies. When the Commission first adopted rules for software
    defined radios, it recognized that manufacturers were beginning to
    use software to help determine the RF characteristics of radios, and
    that our equipment rules, which assumed hardware changes were needed
    to modify a radio's behavior, held the potential of discouraging
    development of software defined radios by requiring repeated
    approvals for repeated software changes.[^3] In light of the
    Commission's experience with these rules, and the record in this
    proceeding, we are here modifying and clarifying our equipment rules
    to further facilitate the development and deployment of software
    defined and cognitive radios. Specifically, we are eliminating the
    rule that a manufacturer supply radio software (source code) to the
    Commission upon request because such software is generally not
    useful for certification review and may have become an unnecessary
    barrier to entry.[^4] We are requiring that a manufacturer supply a
    high level operational description of the radio software that
    controls its RF characteristics for certification of a software
    defined radio. We are also clarifying our rules to permit
    manufacturers to market radios that have the hardware-based
    capability to transmit outside authorized United States frequency
    bands, but have software controls to limit operation to authorized
    frequency bands when used in the United States. In addition, we are
    modifying the rules to ensure that radios with software that is
    designed or expected to be modified by a party other than the
    manufacturer have reasonable security measures to prevent
    unauthorized modifications that would affect the RF operating
    parameters or the circumstances under which the transmitter operates
    in accordance with Commission rules. Further, we describe the
    technical measures that cognitive radios could employ to allow
    secondary use of spectrum by lessees while maintaining the
    availability of the spectrum for a higher priority use by the
    licensee when needed. We conclude that such measures are, or will
    be, technically feasible, but see no need to adopt any particular
    technical model for interruptible spectrum use. These actions are
    taken to facilitate opportunities for flexible, efficient, and
    reliable spectrum use by radio equipment employing cognitive radio
    technologies and enable a full realization of their potential
    benefits.

# Background

5.  An accelerating trend in radio technologies has been the use of
    software in radios to define their transmission characteristics. The
    incorporation of cognitive radio technologies to allow the more
    efficient use of spectrum is also becoming increasingly common. As
    demonstrated in this and earlier proceedings, this Commission has a
    continuing commitment to recognize these important new technologies
    and make any necessary changes to its rules and processes to
    facilitate their development in the public interest.

6.  *Development of Cognitive Radio Technologies.* Over the past several
    years, manufacturers have increased the computer processing
    capabilities of radio system technologies. As a result, radio
    systems are increasingly incorporating software into their operating
    design. Incorporating software programming capabilities into radios
    can make basic functions easier to implement and more flexible. As
    the capabilities have advanced, radio systems have been gaining
    increased abilities to be "cognitive"---to adapt their behavior
    based on external factors. This "ability to adapt" is opening up a
    vast potential for more flexible and intensive use of spectrum.

7.  Radios traditionally were built with unalterable hardware devices
    that performed specific functions or operations, such as filters,
    mixers, amplifiers, and detectors. In certifying these radios, the
    Commission required circuit diagrams and performance specifications
    to test and verify compliance. With the development of digital logic
    and computing devices, software programmable processors could
    accomplish many of these same radio functions. Radios originally
    built strictly with hardware became transmitting/receiving devices
    whose functionality was defined not by the hardware but instead by
    the software that ran on microprocessors and programmable electronic
    devices. The software in such a software radio was reconfigurable
    and could be easily modified or changed so that entirely different
    functionality could be attained by simply changing the software on a
    common hardware platform.

8.  Modern radios incorporate software to provide new features and
    functions for consumers, but not all software has an effect on the
    radio frequency operating parameters of the device. For instance,
    games, web browsers and ring tones that are used in portable
    wireless devices normally have no impact on the RF characteristics
    of the host device. The Commission has never had regulations
    concerning the use of such software and this proceeding does not
    address the use of such software. Many modern radios do, however,
    contain software that affects the radio frequency operating
    parameters. For quite some time, the transmission characteristics of
    commercial radios have been controlled by software contained in the
    firmware embedded in the electronics of the radio. But, by virtue of
    this design, software changes that might alter a radio's RF
    characteristics can not be easily made after the device is
    manufactured.

9.  More recently, many radios have begun to incorporate microprocessors
    and digital electronics that produce radio signals whose operating
    parameters such as frequency and modulation type are determined by
    the software that runs on the microprocessor. Under our rules, such
    "software defined radios" include any "radio that includes a
    transmitter in which the operating parameters of frequency range,
    modulation type or maximum output power can be altered by making a
    change in software without making any changes to hardware components
    that affect the radio frequency emissions."[^5] In such software
    defined radios, the radio can be programmed to transmit and receive
    on any of a variety of frequencies and/or to use one or more
    different transmission formats supportable by its hardware design.
    Until recently, the software installed at the factory that controls
    the radio frequency operating parameters in most software defined
    radios is not readily changeable after manufacture. The major
    advantage of software defined radios with non-modifiable software is
    to provide for economies in manufacture: the manufacturer can
    configure the same hardware product into any of a number of radios
    through software changes alone. Now, manufacturers are producing
    software defined radios in which the control software is designed or
    expected to be modified by a party other than the manufacturer. This
    ability to change software after manufacture potentially affords the
    user direct control over the radio's capability to operate in a
    variety of frequency bands and/or to use differing transmission
    characteristics to access available radio services consistent with
    the Commission's technical and service rules.

10. A cognitive radio goes one step further, and empowers the radio to
    alter its transmitter parameters based on interaction with the
    environment in which it operates. Most commonly implemented through
    software in a software defined radio,[^6] this interaction may
    involve active negotiation or communications with other spectrum
    users and/or passive sensing and decision making within the radio.
    For instance, using a hardware-based design, a CMRS carrier wanting
    to install a cellular base station designed to serve multiple
    modulation formats would have to predetermine a fixed allocation of
    capacity among each of the supported formats. By contrast, a base
    station with cognitive radio capabilities could adopt a dynamic
    allocation of capacity among the different modulation formats on a
    real-time basis. With software defined radios as an implementation
    methodology, cognitive radios are now being built that can recognize
    factors in their environment and modify their performance
    characteristics by changes made via software defined radio
    techniques.

11. As radios become more intelligent, they gain greater flexibility and
    are able to adapt their RF behavior to identify and use spectrum
    that otherwise would not be available for fear of causing
    interference. Features that cognitive radios can incorporate to
    allow for more efficient, flexible spectrum use include.

-   ***Frequency Agility*** - the ability of a radio to change its
    operating frequency to optimize use under certain conditions

-   ***Dynamic Frequency Selection (DFS)*** -- the ability to sense
    signals from other nearby transmitters in an effort to choose an
    optimum operating environment

-   ***Adaptive Modulation*** -- the ability to modify transmission
    characteristics and waveforms to exploit opportunities to use
    spectrum.[^7]

-   ***Transmit Power Control (TPC)*** -- to permit transmission at full
    power limits when necessary, but constrain the transmitter power to
    a lower level to allow greater sharing of spectrum when higher power
    operation is not necessary.

-   ***Location Awareness*** - the ability for a device to determine its
    location and the location of other transmitters, and first determine
    whether it is permissible to transmit at all, then to select the
    appropriate operating parameters such as the power and frequency
    allowed at its location.

-   ***Negotiated Use*** - a cognitive radio could incorporate a
    mechanism that would enable sharing of spectrum under the terms of a
    prearranged agreement between a licensee and a third party.
    Cognitive radios may eventually enable parties to negotiate for
    spectrum use on an ad hoc or real-time basis, without the need for
    prior agreements between all parties.

12. Radios with cognitive capabilities are already in use. Some wireless
    LAN devices and CDMA networks incorporate cognitive capabilities to
    sense spectrum use and/or to adjust transmit power to allow more
    efficient spectrum use, although there is no current requirement in
    the rules to incorporate such capabilities. There are other devices
    that our rules do currently require to have cognitive capabilities.
    Unlicensed Personal Communication Service (PCS) devices are required
    to monitor the spectrum prior to transmission to avoid interference
    to other unlicensed PCS devices.[^8] Also, Unlicensed National
    Information Infrastructure (U-NII) devices operating in the
    5.25-5.35 GHz and 5.47-5.725 GHz bands are required to incorporate
    DFS and TPC to avoid interference to Federal Government
    operations.[^9]

13. It is not unreasonable to expect that radios of the future will not
    only have adaptive cognitive capabilities but also be flexible to
    the point that they may negotiate with each other under a set of
    rules or etiquette for operation and can "learn" from their past
    experience. Some refer to these flexible radios as "ontology radios"
    or "policy radios" due to their intelligence-based reasoning
    characteristics.[^10]

14. *Commission Proceedings on Software Defined Radio and Cognitive
    Radio Technologies.* In 2001, the Commission adopted changes to the
    equipment authorization rules to accommodate the developing software
    defined radio (SDR) technology.[^11] The Commission defined a
    software defined radio as a transmitter in which the operating
    parameters of frequency range, modulation type or maximum output
    power (either radiated or conducted) can be altered by making a
    change in software that controls the operation of the device without
    making any changes in the hardware components that affect the radio
    frequency emissions.[^12] This broad definition covers both radios
    that have software embedded on chips or implemented in other ways so
    that the software can not be readily changed by the user, as well as
    radios that are designed so the software can be easily changed after
    manufacture. It did not include, however, radios where software was
    used only to select a particular transmission characteristic among a
    range of permissible alternatives. For instance, the definition does
    not encompass a radio whose hardware limits its transmission to
    permissible frequency ranges, with software selecting a particular
    transmission frequency within those ranges. The SDR rules were
    intended to make possible for manufacturers to obtain approval for
    changes to the operating parameters of a radio resulting from
    software changes without the need to physically re-label a device
    with a new FCC identification number in the field. The Commission
    made the rules permissive, rather than mandatory, thereby permitting
    a manufacturer the option to his declare a device an SDR at the time
    of filing for certification, but not requiring the manufacturer to
    do so. The Commission adopted the following rule changes for SDRs:

-   Established a new streamlined procedure for obtaining approval for
    changes to the operating parameters of SDRs that result from
    changing the software in the device.[^13] The same FCC
    identification number may be used when changes are made to an
    approved device.

-   Allowed a device's FCC identification number to be displayed
    electronically, rather than on a physical label.[^14]

-   Required SDRs to incorporate security features to ensure that only
    software that is part of an approved hardware/software combination
    can be loaded into an SDR. The exact methods are left to the
    manufacturer.[^15]

-   Required manufacturers to supply a copy of the software that
    controls the operating parameters of a radio to the Commission upon
    request.[^16]

15. Vanu, Inc. recently became the first manufacturer to obtain approval
    from the Commission for a software defined radio under these
    rules.[^17] The Vanu equipment is a wireless GSM base station that
    uses a general-purpose hardware platform to support multiple
    wireless services and standards entirely in software. It allows
    modification of the RF planning and assignment of standards through
    remote software parameter changes, and supports upgrades to new
    standards through a software-only download.[^18] The ability to
    operate with different modulation formats means that a single base
    station could communicate with handsets using different transmission
    formats, potentially allowing communication with a greater number of
    "roaming" users and potentially resulting in lower costs for
    wireless carriers and users than if multiple hardware-based
    transmitters had to be employed.

16. The Commission currently has several pending proceedings that
    address the use of cognitive radio technologies to improve the
    efficiency of spectrum use. For example, in two separate
    proceedings, the Commission proposed to require unlicensed devices
    to incorporate cognitive features to enable operation in the TV
    broadcast bands and in the 3650-3700 MHz band without causing
    interference to licensed users in those bands.[^19] In addition, we
    have recently opened additional opportunities that could tap the
    potential of cognitive radio technologies in our *Secondary Markets*
    proceeding.[^20]

17. On December 17, 2003, we adopted a *Notice of Proposed Rule Making
    and Order* ("*Notice*") in this proceeding to explore the uses of
    cognitive radio technology to facilitate improved spectrum
    access.[^21] The *Notice* addressed: 1) the capabilities of
    cognitive radios, 2) permitting higher power by unlicensed devices
    in rural or other areas of limited spectrum use, 3) enabling the
    development of secondary markets in spectrum use, including
    interruptible spectrum leasing, 4) applications of cognitive radio
    technology to dynamically coordinated spectrum sharing, and 5)
    software defined radio and cognitive radio equipment authorization
    rule changes. A total of 56 parties filed comments and 14 parties
    filed reply comments in response to the *Notice*.[^22]

# DISCUSSION

18. The growth of wireless services over the past several years
    demonstrates the vast and growing demand of American businesses,
    consumers, and government for spectrum-based communications.
    Spectrum access, efficiency, and reliability have become critical
    public policy issues. We recognize the importance of new cognitive
    radio technologies, which are increasingly being used in
    spectrum-based communication systems and are likely to become more
    and more prevalent over the next few years. These technologies hold
    tremendous promise in helping to facilitate more effective and
    efficient access to spectrum by opening opportunities for spectrum
    use in space, time, and frequency dimensions that until now have
    been unavailable. The ability of cognitive radio technologies to
    adapt a radio's use of spectrum to the real-time conditions of its
    operating environment offers regulators, licensees, and the public
    the potential for more flexible, efficient, and comprehensive use of
    available spectrum while reducing the risk of harmful interference.
    We are seeking in this proceeding to facilitate opportunities for
    flexible, efficient, and reliable spectrum use by radio equipment
    employing cognitive radio technologies. Our goal is to ensure that
    our rules and policies do not inadvertently hinder development and
    deployment of such technologies, but instead enable a full
    market-based realization of their potential benefits.

19. The development of cognitive radio technology has been and will
    continue to be evolutionary in nature. As the technology evolves,
    our intent is to delete, change, or adopt rules in phases so as to
    ensure that our rules facilitate the market-based development and
    deployment of these technologies. In this Report and Order, we first
    cover in some detail various wide-ranging efforts being undertaken
    today by both government and industry to further in the near term
    the development of cognitive capabilities in software-based radio
    systems and in the longer term the evolution into fully capable
    cognitive radio systems.

20. To facilitate the market-based development and introduction of new
    technologies into the market, we are addressing certain issues in
    this Report and Order that have arisen with respect to the
    certification of software-based radio equipment.[^23] Based on our
    experience and the comments in the record, we modify and clarify
    certain of our rules that address software defined radios to
    facilitate the market based development of this technology.
    Specifically, we require radios in which the software that controls
    the RF operating parameters is designed or expected to be modified
    by a party other than the manufacturer to comply with the rules for
    software defined radios, including the requirement to incorporate
    security features to prevent unauthorized modifications to the
    software. We also modify the definition of software defined radio to
    include devices where a software change could make the device
    non-compliant with the Commission's radio frequency emission rules.
    We are eliminating the rule that the manufacturer supply radio
    software (source code) to the Commission upon request for
    certification because such software is generally not useful for
    certification review and may have become an unnecessary barrier to
    entry. We always retain the right to request and examine any
    component (whether software or hardware) of a specific radio system
    when needed for certification under Commission rules. We are
    requiring that the manufacturer supply a functional description of
    the radio software that controls its RF characteristics and a
    description of the means that will be used to protect that software
    from unauthorized tampering. Furthermore, since these descriptions
    are apt to involve proprietary intellectual property, we will make
    provisions to keep these specific items confidential, for Commission
    use only.

21. This Report and Order also considers the technical measures that a
    cognitive radio could incorporate to enable secondary use of
    spectrum, yet allow the use of such spectrum to quickly and reliably
    revert back to the licensee when necessary. We conclude that such
    measures are, or will be, technically feasible, but see no need to
    adopt any particular technical model for interruptible spectrum
    leasing.

22. In the *Notice* we proposed to allow unlicensed devices that employ
    cognitive radio technologies to operate at higher power in rural and
    other areas with limited spectrum use.[^24] While we are not
    adopting any changes to allow higher power operation by unlicensed
    devices in this Report and Order, we continue to believe that
    cognitive radio technologies hold great promise to allow such higher
    power operation without interference to other spectrum users. We
    expect to further consider the issue of higher power unlicensed
    operation at a later date.

23. We also sought comment in the *Notice* on what tests might be needed
    to assure the compliance of licensed and unlicensed devices with any
    new rules for cognitive radio devices.[^25] We listed a number of
    tests that we believed may be necessary for various types of
    cognitive radio devices. Upon further consideration, we do not
    believe that it is practical to develop generalized test procedures
    for cognitive radio devices because the functions that would need to
    be tested will vary depending on the specific application. Rather,
    we expect to develop test procedures on a case-by-case basis when
    new cognitive radio rules are developed, as is being done in the
    U-NII proceeding.

24. We received a number of comments from parties in response to the
    *Notice*, principally from commercial mobile radio service (CMRS)
    interests, that expressed concern that the Commission intended to
    adopt rules permitting involuntary sharing of licensed CMRS spectrum
    with unlicensed devices.[^26] We did not propose to allow such
    sharing in the *Notice* in this proceeding and we are not adopting
    any changes herein that would allow such sharing.

## Cognitive Radio Technology Developments

25. The efforts being undertaken by industry, often working with
    governmental agencies, standards bodies, and others to research,
    develop, and implement various software-defined radio and cognitive
    radio capabilities have been striking. These accomplishments were
    made possible through various advanced radio technologies such as
    those of the Department of Defense Joint Tactical Radio System
    (JTRS) in development of a common software architecture and the
    first actual software defined radios. Industry, working in
    conjunction with the military, is also taking a lead in developing
    and implementing new technologies and is serving as the impetus for
    further technical developments that should spur the commercial
    deployment of SDRs and cognitive radios. In addition, efforts are
    underway within industry forums and standards organizations to adopt
    internationally accepted standards for software defined radios and
    cognitive radios. These efforts and the resultant technical
    developments undoubtedly will lead to even greater flexibility in
    the future, with some touting the ultimate adoption of radios
    incorporating a cognition cycle as the foundation for a fully
    flexible cognitive radio.

26. A key player in the early development software defined radio was the
    US Department of Defense with its Joint Tactical Radio System (JTRS)
    Program. This program was intended to develop a software
    architecture that could be used by all radio developers. Using a
    common architecture, modular hardware devices and software programs
    could be built that could be flexibly and interchangeably used in a
    common architectural framework, yielding reduced radio development
    and integration costs. The architecture became known as the Software
    Communications Architecture (SCA) and is currently in release as
    version 3.0.[^27] This software architecture provides a common
    framework for operational flexibility, interoperability, reduced
    acquisition costs and enhancement via technology insertion. The SCA
    is defined as "the architectural concept that defines the essential
    core set of open software interfaces and profiles that provide for
    the deployment, management, interconnection, and intercommunication
    of software application components in embedded and distributed
    communications systems."[^28] Software defined radios considered to
    be SCA compliant are being built now under the auspices of the JTRS
    Program.

27. Commercial industry adopted the SCA through an industry association
    called the Software Defined Radio Forum.[^29] The SDR Forum is an
    international, nonprofit organization dedicated to promoting the
    development, deployment, and use of SDR technologies for advanced
    wireless services and currently has over 100 member organizations.
    With the SDR Forum, the SCA became an industry-endorsed framework
    for the evolution and development of software-based radio.

28. The activities of the SDR Forum have increased substantially since
    its inception. Through international conferences, meetings,
    participation in standards bodies, and other activities, the Forum
    has expanded to include a multitude of activities contributing to
    the development of SDR technologies. They now include such things as
    technical developments in software portability and security issues,
    system interfaces, smart antenna technology, waveform developments,
    network architectures, and references for various software radio
    implementations. Forum members and participants have also been very
    active in development of tools for software defined radio design and
    development such as reference models and automated design tools. The
    SDR Forum has also established a Special Interest Group for Public
    Safety to ensure the continued development of SDR within the public
    safety sector.

29. Recognizing its global implications, the SDR Forum has teamed with
    and established liaison with other international organizations such
    as the End-to-End Reconfigurable Radio (E2R) Project Consortium that
    was established in 2004 by the European Commission. With a
    membership of over 28 organizations from 10 countries, the E2R
    Project now includes manufacturers, operators, academia, and
    research centers throughout Europe. The charter for this project is
    to "devise, develop and trial the architectural design of
    reconfigurable devices and supporting system functions to offer an
    expanded set of operational choices to the users, applications and
    service providers, operators, and regulators in the context of
    heterogeneous mobile radio systems."[^30] The efforts of the E2R
    consortium are complementing those of the SDR Forum by considering
    the implementation, reconfiguration, and conformity requirements for
    modular software-based radio systems.

30. The International Telecommunications Union (ITU) is also beginning
    consideration of the application of software defined radio concepts
    in IMT 2000 systems and systems beyond IMT 2000 (systems beyond 3G
    (B3G)) via Working Party ITUR-8F and is broadening the scope of its
    software defined radio regulatory policies in Working Party
    ITUR-8A.[^31] This effort is in the preliminary stages but suggests
    a worldwide acceptance of software defined radio techniques,
    policies, and procedures. At present, recommendations are being
    formulated for submission to the working parties to initiate ITU
    activity regarding SDRs.

31. An alternative but parallel effort is underway, sponsored by other
    groups who wish to develop SDRs with an open architecture approach
    to reconfigurable radio. These include the amateur radio community,
    kit manufacturers, and the GNU radio project.[^32] These groups do
    not use the SCA, but instead favor an architecture open to anyone
    who may wish to contribute to its evolution via common software
    development. For example, the GNU radio project is now providing a
    development circuit board that can be used with a number of openly
    available software download packages or users can design their own
    software implementations.

32. Research activities on cognitive radio are ongoing within academia
    as well, and include universities and research centers around the
    world. For example, the SDR Forum Technical Conference in November
    of 2004 included more than 75 organizational participants.[^33]
    Other examples include Virginia Tech's Center for Wireless
    Telecommunications[^34] and the University of California Berkeley
    Wireless Research Center.[^35] These Centers have initiated active
    research programs for the development of cognitive radio
    technologies. One such project is exploring the use of cognitive
    technology to build public safety radios that are frequency and
    waveform agile and can adapt to alternative networking requirements
    and dynamic spectrum requirements.

33. The development of cognitive radio capabilities such as those
    already mentioned are the result of the rapid advance of various
    radio technologies -- many providing benefits outside of the
    cognitive radio arena. Digital signal processors, analog-to-digital
    converters and field programmable gate arrays have provided the
    basic building blocks as processing platforms for software defined
    radios. At the same time, new design tools are allowing rapid
    prototyping and reconfiguration of these basic processors. Other new
    technologies, such as smart antennas, parallel processing, ad hoc
    and mesh networking, and multiple-input--multiple-output signal
    processing techniques are providing new opportunities for
    alternative and more advanced communications capabilities than
    simple software radio allows. In addition, new nanoscale
    technologies, such as the application of 65 nanometer (nm) scale
    integrated circuits, are fostering potentially revolutionary
    reductions in scale of devices and increased processing speeds that
    could permit multiple configurations within SDRs and CRs. Reducing
    the scale of processors and other microelectronic mechanical systems
    is continuing and the promise of even further reductions is still
    ahead.[^36] Nanoscale technologies also provide the promise for
    miniaturization of SDR processors and CR systems. Nanotubes for
    enhanced conductivity, nanoscale electronics for increasingly
    smaller scale and faster devices and circuits, and nanoscale
    electro-optics for enhanced computation and interconnection are the
    future of radio design. Coincident with hardware developments that
    aid SDR and CR design, new software developments such as application
    interfaces, conformance testing procedures, security measures, and
    reconfiguration management are continuing to provide avenues for
    more sophisticated, efficient, and reliable software routines that
    may greatly facilitate the development of increasingly sophisticated
    cognitive radios.

34. Cognitive radio technologies are the path of evolution of software
    defined radios from strictly radios whose operating characteristics
    can be modified via software changes to a fully flexible
    reasoning-based radios, that is, sophisticated radios that are able
    to recognize their environment and adopt new operational
    characteristics based on a reasoned assessment of the environmental
    and operational etiquette opportunities available to the devices.
    The flexibility of a fully realized cognitive radio model is based
    on the model of a six phase cognition cycle where radios apply the
    "Observe, Orient, Plan, Learn, Decide, Act" phases. [^37] The
    process begins with the observation, or awareness, phase during
    which the radio autonomously acquires information about and
    recognizes its environment. For example, the radio acquires
    information regarding its physical environment including time
    (temporal context), space (geographical context), and frequency
    (physical interface context). Using this information, a fully
    flexible cognitive radio is able to process its sensory perceptions,
    orient itself, and establish a radio presence based on this existing
    knowledge. This knowledge base provides a foundation for the
    development of alternative options to planning phase of the
    cognition cycle. In a fully flexible cognitive radio, the radio will
    learn based on its past actions and experience, and incorporate that
    into its deliberations during the next two steps in the cognition
    cycle - the decide and act phases of the process. These phases are
    enabled by the software-reconfigurability nature of the radio
    implementations and allow the radios to use the strategy that the
    radio reasons[^38] and arrive at a common operating state with other
    radios via a managed rendezvous strategy.[^39] In this context, the
    devices may even be able to morph to various waveform
    implementations and thus employ heteromorphic waveform[^40]
    solutions. After acting in a particular instance, a new generation
    of intelligence-based radio will then consider the results of its
    action, and will take into account its learning in future actions.
    This may lead to flexible implementations as well as new flexible
    spectrum management opportunities.

35. The development of fully cognitive radio technologies is being
    actively pursued now through programs such as the US Department of
    Defense Advanced Research Projects Agency (DARPA) Next Generation
    (XG) Radio Program.[^41] For example, Raytheon Corporation, among
    others, has developed and is testing a prototype XG radio
    system[^42] that is able to recognize spectrum use opportunities and
    reconfigure its software radio implementations to take advantage of
    those opportunities. We believe that the XG Program will be a
    catalyst for many further developments in cognitive radio
    technology.

36. The advent of cognitive radios and associated technologies has the
    potential to initiate a new era in radio frequency spectrum
    utilization. With radios that are able to recognize spectrum
    availability and able to negotiate protocols for rapid
    reconfiguration, these radios will employ software defined radio
    technologies to change their operational characteristics and open
    new opportunities for spectrum use. As highlighted in our *Notice*,
    applications such as dynamic spectrum sharing, interruptible
    spectrum sharing, and rapidly reconfigurable secondary markets in
    spectrum use will be attainable with cognitive radios.

## Enabling cognitive and software defined radio

37. Cognitive and software defined radio technologies have continued to
    evolve since we adopted rules for software defined radios in 2001.
    We also have gained greater experience with these technologies,
    authorizing the first radio under our software defined radio in
    November 2004.[^43] Based on these continuing technical
    developments, our experience, and the comments in the record, we
    find that certain changes to the rules are appropriate at this time
    to facilitate the market-based development and deployment of these
    technologies.

38. In this section, we thus are making certain changes to our current
    rules and clarifying them in other respects. First we are modifying
    the definition of software defined radio to include radios that
    employ software that determines not just the operating parameters,
    but also the circumstances under which the radio transmits pursuant
    to those parameters. We clarify that equipment that is designed or
    expected to be modified by a party other than the manufacturer must
    be certified as software defined radios and comply with security
    requirements to prevent unauthorized modifications to the radio
    frequency operating parameters. We also clarify the security
    requirements that such equipment must meet.

39. In addition to these changes, we make several other changes to the
    authorization requirements for software defined radios. We find that
    the specific rule that requires manufacturers to supply a copy of
    their radio software (source code) to the Commission upon request is
    unnecessary because such software is generally not useful for
    certification review and may have become an unnecessary barrier to
    entry. In addition, the Commission already has authority to request
    to request and examine any component (whether software or hardware)
    of a radio system when needed for certification under Commission
    rules.[^44] We therefore delete this requirement as discussed below.
    Further, we clearly define the information about the radio software
    that must be submitted with applications for software defined
    radios. Additionally, we allow certification of certain Part 15
    unlicensed transmitters that have the technical capability of
    operating outside Part 15 frequency bands, provided the equipment
    incorporates features to limit operation to authorized frequencies
    when used in the United States.

### Cognitive and software defined radio security

#### Software defined radio definition and applicability of rules

40. To reflect new kinds of conditions sometimes being included in our
    certification rules, we are broadening the definition of software
    defined radio to include devices where a software change could
    change not only the operating parameters of frequency range,
    modulation type or maximum output power, but also the circumstances
    under which a transmitter operates in accordance with Commission
    rules. For example, to make available otherwise unusable spectrum,
    we have required that certain radio transmitters include a DFS
    algorithm that further conditions use of spectrum beyond frequency
    range, modulation type, and maximum output.[^45] We are also
    changing the rules to require certain equipment to comply with the
    rules for software defined radios, including the requirement to
    incorporate security features to prevent unauthorized modifications
    to the software that controls the RF operating parameters.
    Specifically, we are requiring equipment in which the software that
    controls the radio frequency operating parameters is designed or
    expected to be modified by a party other than the manufacturer to
    comply with the rules for software defined radios. Because this
    change is limited to radios that contain RF affecting software that
    is third party modifiable, we believe that this change will affect
    only a small subset of equipment available in the marketplace today.
    We are making no change to the authorization requirements for the
    vast majority of devices such as cellular/PCS telephones, Wi-Fi
    equipment and two-way radios where the software that controls the RF
    operating parameters is not designed or expected to be modified by a
    party other than the manufacturer.[^46]

41. *Background*. The Commission first adopted rules for software
    defined radios in 2001.[^47] In that proceeding, the Commission
    defined a software defined radio as "a radio that includes a
    transmitter in which the operating parameters of frequency range,
    modulation type or maximum output power (either radiated or
    conducted) can be altered by making a change in software without
    making any changes to hardware components that affect the radio
    frequency emissions."[^48] This definition was not intended to cover
    devices such as cellular telephones that use software simply to
    control functions such as power or frequency within a range approved
    by the Commission, unless the maximum power or frequency range could
    also be modified by making a change in software.[^49] At the time
    this definition was adopted, the equipment authorization rules
    primarily addressed the frequency ranges, modulation types and
    maximum power or field strength levels of equipment. More recently,
    certain equipment rules now require features that limit when a radio
    can transmit even within authorized ranges, such as DFS for U-NII
    devices.[^50]

42. The rules for software defined radios were modeled after the rules
    for hardware-based equipment, in that a software defined radio will
    be approved only if the applicant for certification demonstrates
    that the equipment complies with the technical requirements in one
    or more specific service(s) or rule part(s) as is required for
    hardware-based devices. Hardware-based devices are generally not
    designed to be modified by a party other than the manufacturer.
    However, the Commission has held that a hardware-based device that
    can easily be altered to activate a capability of operating in
    additional frequency bands is subject to equipment certification
    under the rules that apply in those bands prior to marketing or
    importation.[^51] In the *SDR Proceeding,* the Commission recognized
    that a software-defined radio might be easier to modify than
    hardware-based devices. As a matter of policy, the Commission wanted
    additional assurances that manufacturers of software-based equipment
    would take steps to prevent abuses, so it adopted a requirement that
    a device that is certified as a software defined radio must
    incorporate a means to ensure that only software that is part of an
    approved hardware/software combination can be loaded into a radio,
    and the software must not allow the radio to operate with parameters
    outside of those that were approved.[^52] To eliminate the need for
    manufacturers to file a complete new application and re-label
    equipment when software changes that affect the RF operating
    parameters are made after the initial equipment approval, the
    Commission established a streamlined authorization procedure for
    changes to the software that controls these parameters.[^53] The
    rules require an applicant for equipment authorization, or the
    grantee or other party responsible for the compliance of the
    equipment, to supply a copy of the software that controls the RF
    operating parameters to the Commission upon request.[^54] The rules
    for software defined radios are permissive; meaning that a
    manufacturer does not have to declare that a device is a software
    defined radio in the application for certification, even if the
    device meets the definition.

43. Of course, many radios that meet the definition of a software
    defined radio are not designed or expected to be modified by a party
    other than the manufacturer. For instance, many radios incorporate
    software on chips that can not be easily reprogrammed or replaced by
    a user. However, some newer radios are being designed so that the
    software that controls the radio frequency operating parameters can
    be modified or replaced after manufacture by a party other than the
    manufacturer. Common techniques employed include a keypad,
    over-the-air, or through an interface that connects to a computer or
    other programming device. In the *Notice*, we sought comment on the
    need to require equipment in which the RF affecting software is user
    modifiable to comply with the requirements for software defined
    radios, including the requirement to incorporate security
    features.[^55] Additionally, we sought comment on the types of
    devices to which this requirement should apply, including how the
    rules should distinguish between transmitters that must be certified
    as software defined radios and those that need not be.[^56]

44. *Comments*. A number of parties support a requirement for devices to
    comply with the rules for software defined radios if the software
    and operating parameters can be easily changed post-manufacture
    and/or that pose a high risk of causing interference to licensed
    services such as public safety.[^57] Intel states that those devices
    that use software defined radio as a manufacturing technique and are
    not intended to be modified in the field should not be required to
    be declared as software defined radios, and that the Commission
    should impose requirements on only those devices where the
    manufacturer intends to allow modifications in the field.[^58] Vanu,
    Inc., a manufacturer of software defined radios, believes that
    mandatory certification as software defined radios may be desirable
    when harmful interference may result from a foreseeable modification
    to the device's software by a third party. It states that the
    Commission could adopt security requirements that are not limited to
    radios that meet the definition of software defined radios.[^59] The
    National Public Safety Telecommunications Council and the SDR Forum
    believe that the Commission's concern should not be that a radio
    could be reprogrammed on an individual basis because the number of
    radios potentially affected that way would not be significant.[^60]
    They state that the Commission's concern should be that large
    numbers of radios could be remotely modified simultaneously (e.g.,
    through a cellular network or over the Internet), and support a
    requirement to incorporate security features in all software defined
    remotely programmable radios that are capable of transmitting in
    public safety or restricted bands, regardless of whether they are
    declared as software defined radios.[^61] Cingular/Bellsouth believe
    that the Commission should apply security requirements to all
    software defined remotely programmable transmitting devices whether
    they are declared as software defined radios or not.[^62] Cisco
    states that devices that can be reprogrammed in the field by the end
    user should be treated as software defined radios for equipment
    authorization purposes, while those devices that cannot be
    reprogrammed by the end user need not be authorized as software
    defined radios.[^63]

45. Sirius/XM and Nextel Partners also support mandatory certification
    as software defined radios. Sirius/XM state that mandatory software
    defined radio registration is a rational approach to protecting
    licensed services and places the burden to avoid interference on the
    unlicensed and not the licensed user.[^64] Nextel Partners state
    that software defined radio manufacturers should be required to
    identify their technologies as such and should not be permitted to
    avoid Commission-imposed requirements by mischaracterizing or
    failing to fully declare the capabilities of their devices.[^65]

46. Several parties oppose a requirement to certify certain equipment as
    software defined radios.[^66] The Wi-Fi Alliance expresses concern
    about the added burden on manufacturers and Commission staff if
    mandatory software defined radio categorization is imposed on
    hundreds of WiFi device applications.[^67] Motorola opposes any rule
    requiring it to declare whether a device constitutes a software
    defined radio, stating that the definition of software defined radio
    is too broad to ensure that certain devices are not improperly
    included. Motorola further argues that such a requirement could
    improperly restrain the development of certain technologies.[^68]
    Ericsson and TIA also oppose any requirement that manufacturers or
    importers declare certain equipment as software defined radios,
    stating that the current rules provide adequate safeguards against
    unauthorized modifications to software defined radios.[^69] They
    further state that a mandatory software defined radio declaration in
    the filing for some devices could be a disincentive to the
    deployment of software defined radios and burden industry by
    inhibiting robust development of an efficient manufacturing
    technique.[^70]

47. *Discussion*. We conclude that it is necessary to modify our rules
    to help ensure that certain radios incorporating software cannot be
    easily modified on an unauthorized basis and cause harmful
    interference or otherwise violate our rules. Specifically, to
    conform the definition of software defined radio to the evolving
    nature of our certification requirements, we are first modifying
    that definition to include radios that employ software that
    determines not just the operating parameters, but also the
    circumstances under which the radio transmits pursuant to those
    parameters. Second, we are requiring software defined radios whose
    relevant RF affecting software is designed or expected to be
    modified by a party other than the manufacturer to comply with the
    rules for software defined radios, including the requirement to
    incorporate security features (further discussed below) to prevent
    unauthorized modifications to the software.

48. We modify our definition of software defined radio because, under
    recent rules, certain software changes that do not directly affect
    the technical operating parameters affect whether the device can be
    certified under our rules. The direct effects are addressed in the
    current definition of a software defined radio: frequency range,
    modulation type or maximum output power (either radiated or
    conducted).[^71] Our rules, however, now sometimes require
    additional radio functions such as DFS to prevent interference to
    other users. Even though these functions are being implemented and
    controlled by software in a radio, they do not currently fall within
    the definition of a software defined radio. In its comments, Vanu
    suggested that the Commission could consider security requirements
    that are not limited to radios that meet the definition of software
    defined radios. We agree with Vanu that we should not limit our
    consideration of radio security issues only to those radios within
    the current software defined radio definition.

49. Consistent with the above, we are changing the definition of
    software defined radio to address software changes that directly or
    indirectly affect the compliance of a device with the Commission's
    rules. The modified definition will read as follows.

    *Software defined radio.* A radio that includes a transmitter in
    which the operating parameters of frequency range, modulation type
    or maximum output power (either radiated or conducted), or the
    circumstances under which the transmitter operates in accordance
    with Commission rules, can be altered by making a change in software
    without making any changes to hardware components that affect the
    radio frequency emissions.

50. We are also changing the applicability of our rules to address
    software defined radios with relevant software that is designed or
    expected to be modified by a party other than the manufacturer. If a
    radio is not certified as a software defined radio, a manufacturer
    is not required to demonstrate in the equipment certification
    process that it incorporates features designed to prevent
    unauthorized changes to the software that would permit violation of
    Commission rules the equipment's certification, thus increasing the
    risk of interference to authorized radio services. We find that such
    a showing is in the public interest when a radio's RF-affecting
    software is designed or expected to be modified by a third party
    other than the manufacturer. In addition to minimizing the potential
    for unauthorized modifications to software defined radios, these
    changes will benefit manufacturers by allowing them to take
    advantage of the streamlined Class III permissive change procedure
    when they develop revised software that affects the RF operating
    parameters of the radio.[^72]

51. We find that the rules we are adopting that require the
    certification of certain radios as software defined radios will not
    be unduly burdensome on manufacturers or restrain the development of
    technology. Only a relatively small number of radios will be
    affected by this requirement because most RF affecting radio
    software is not designed or expected to be modified by a party other
    than the manufacturer, and we are not changing the rules for radios
    that are not designed or expected to be modified by a party other
    than the manufacturer. Thus, there will be no change to the
    authorization requirement for the vast majority of devices including
    cellular/PCS telephones, land mobile transceivers and Wi-Fi
    equipment, provided the software that directly or indirectly
    controls the RF emissions of these devices is not designed or
    expected to be modified by a party other than the manufacturer.
    Also, manufacturers of radios that are software modifiable typically
    already take steps to prevent unauthorized modifications to the
    software in a radio, so we expect that only rarely will
    manufacturers have to make significant design changes to comply with
    the security requirements. In addition, as discussed below, we are
    adopting changes to simplify the information that must be submitted
    with an application for a software defined radio. Finally, we find
    that the requirements we are adopting are consistent with the
    Commission's authority under Section 302 of the Communications Act
    to make reasonable regulations, consistent with the public interest,
    which govern the interference potential of radio frequency
    devices.[^73]

52. We find that the standard we are adopting adequately protects
    against interference to other users. We disagree with the commenters
    who argue that only radios that can be remotely modified in large
    numbers should be required to be certified as software defined
    radios. We first find that this definitional standard to be too
    difficult to apply. We also note that a radio that lacks security
    features to prevent unauthorized changes to the RF operating
    parameters could be easily modifiable to operate in unauthorized
    bands, and therefore has a high potential to interfere with
    authorized users in many different bands, including public safety
    bands. We therefore find that the requirement to certify certain
    radios as software defined radios should apply to all radios which
    are software modifiable by the user, not just those which could be
    remotely modified in large numbers.

53. *Permissive changes to software defined radios.* We are modifying
    the Class III permissive change rule, Section 2.1043(b)(3), to make
    the wording consistent with the modified definition of software
    defined radio adopted above. Additionally, we are setting forth a
    policy for permissive changes to radios that were approved before
    the effective date of the rules adopted herein. Specifically, when a
    grantee wishes to make a permissive change to a previously approved
    device, the device will be continue to be classified in the same
    manner that it was at the time it was originally certified, *i.e.*,
    software defined or non-software defined radio. Thus, a device that
    was approved as a non-software defined radio before the rules
    adopted herein become effective will not have to be re-certified as
    a software defined radio even if it meets the new standard for
    mandatory certification as a software defined radio. A device that
    was certified as a software defined radio will continue to be
    treated as such when a request for a permissive change is filed.
    Parties should note that we are not changing the requirement that
    Class III changes are permitted only for software defined radios in
    which no Class II changes have been made from the originally
    approved device.

#### Security requirements for software defined radios

54. We are clarifying the requirements in the rules that are intended to
    prevent unauthorized changes to the operating parameters of software
    defined radios. The Commission's equipment approval rules currently
    require that manufacturers take steps to ensure that only software
    that has been approved with a software defined radio can be loaded
    into such a radio.[^74] The current rule states that the software
    must not allow the user to operate the transmitter with frequencies,
    output power, modulation types or other parameters outside of those
    that were approved.[^75] Manufacturers may use authentication codes
    or any other means to meet these requirements, and must describe the
    methods in their application for equipment authorization.[^76]

55. In the *Notice*, we sought comment on whether the rules provide
    adequate safeguards against unauthorized modifications to software
    defined radios or whether more explicit security requirements are
    necessary, such as requiring electronic signatures in software to
    verify the software's authenticity^.^[^77] We also sought comment on
    whether there should be limits to a manufacturer's liability in the
    event that reasonable security methods ultimately are broken,
    specifically, whether a manufacturer would be deemed compliant with
    the rule requiring security measures to prevent unauthorized
    software modifications, if it has taken measures that are
    "commercially reasonable" in light of standards employed in the
    software defined radio industry at the time, provided it has not
    marketed a device containing a known software vulnerability.[^78]

56. Commenters are generally supportive of the Commission's current
    requirements that allow the security of software defined and
    cognitive radios to be addressed by industry and state that this
    approach allows industry to incorporate new and more advanced
    security measures into equipment without the need for Commission
    action.[^79] Dell believes that, in addition, there should be
    limitations on the liability of a manufacturer that meets or exceeds
    an industry standard for security methods in the event that
    equipment is found to be modifiable by end users. By contrast, Intel
    believes this approach would be counterproductive because such a
    rule could encourage manufacturers to design equipment to meet a
    standard that may not address the actual threat of modifications to
    a specific device.[^80]

57. We find that the current approach that manufacturers take steps to
    prevent unauthorized changes to the software in a radio, but does
    not require the use of specific security measures, is the most
    appropriate method to ensure the security of software defined
    radios. This approach allows manufacturers to respond to
    improvements in security technology more quickly and with the best
    solutions for a particular product because no Commission action is
    necessary to permit manufacturers to use new security technologies.
    Therefore, we are maintaining the current security requirement. The
    record shows that manufacturers are aware of the need to incorporate
    security measures in software defined radios and are in fact doing
    so.[^81] We note that NTIA has recommended that, as a long term
    goal, we consider requiring "Protection Profiles" -- an approach
    currently under consideration in the SDR Forum \-- as part of the
    equipment certification process for software defined radios.[^82]
    After industry progresses further in its deliberations, we may
    consider the possible applicability of Protection Profiles, or
    certain concepts of Protection Profiles, to equipment certification
    in a future proceeding that addresses the security of software
    defined and cognitive radios.

58. Our security requirements for software defined radios give
    manufacturers flexibility to determine the appropriate security
    measures for a device. However, manufacturers also have the
    responsibility to choose security measures that can not be easily
    defeated by unintended parties. In the event that a software defined
    radio is found to be easily modifiable by end users, we would expect
    the responsible party as defined by our rules to immediately cease
    marketing the equipment and to take steps to ensure that future
    production of the equipment complies with the rules. Any potential
    forfeiture for non-compliance with the software defined radio
    security requirements would be considered on a case-by-case basis,
    taking into account all relevant factors, in the same manner as
    forfeitures are considered for non-compliant hardware-based
    equipment. In determining whether to issue any forfeiture penalties
    for a non-compliant device, the Commission takes into account the
    nature, circumstances, extent and gravity of the violations and,
    with respect to the violator, the degree of culpability, any history
    of prior offenses, ability to pay, and such other matters as may be
    relevant and appropriate.[^83] The Commission has specific
    guidelines for assessing forfeitures, but may issue higher or lower
    forfeitures than provided in the guidelines, issue no forfeiture at
    all, or apply alternative or additional sanctions as permitted by
    statute.[^84]

59. We decline to establish specific limitations on the responsible
    party's liability for a device that incorporates specific type(s) of
    security measures in the event that it is later determined that
    unauthorized modifications can be easily made to the radio frequency
    operating parameters of the device. As discussed above, the
    responsible party's liability for a non-compliant device is most
    appropriately determined on a case-by-case basis. Further, we agree
    with Intel that such an approach could be counterproductive because
    manufacturers would tend to design equipment to incorporate specific
    security features and may have little incentive to design equipment
    with robust security features, especially where more secure features
    add cost to a device. However, the Commission may consider
    compliance with industry security standards as a factor in
    determining the responsible party's liability.

60. We are simplifying the structure of the rules for software defined
    radios by moving the security requirements for software defined
    radios from Section 2.932(e) into Section 2.944. Section 2.944
    currently contains a requirement for parties to submit a copy of
    radio software to the Commission upon request. As discussed below,
    we are changing that requirement as well as the applicability of the
    security requirements for software defined radios. We are placing
    the requirements for software defined radios into a single rule
    section, Section 2.944, for easier reference. We are also modifying
    Section 2.1033, which lists the information to be included in an
    application for certification, to make clear that an application for
    certification of a software defined radio must include the
    information specified in the revised Section 2.944.

61. As part of the revisions to Section 2.944, we are providing specific
    examples of the types of security measures that the Commission may
    consider to be acceptable for preventing unauthorized modifications
    to equipment.[^85] These examples are intended only to provide
    guidance to industry, and the use of one or more of these methods in
    a particular device should not be construed to limit a
    manufacturer's liability or responsibility to take appropriate
    corrective action in the event that parties other than the
    manufacturer are able to make unauthorized modifications to a
    device. This section will state that manufacturers may use any
    reasonable means to prevent impermissible modifications to the radio
    software including, but not limited to, the following and must
    describe the method(s) used for a particular device in the
    application for certification:

-   The use of a private network that allows only authenticated users to
    download software.

-   Coding in hardware that is decoded by software to verify that new
    software can be legally loaded into a device.

-   Electronic signatures in software

#### Amateur equipment and D/A converters

62. In the *Notice*, we proposed to exempt manufactured software defined
    radios that are designed to operate solely in amateur bands from any
    mandatory declaration and certification requirements, provided the
    equipment incorporates features in hardware to prevent operation
    outside of amateur bands.[^86] We also sought comment on the need to
    restrict the mass marketing of high-speed digital-to-analog (D/A)
    converters that could be diverted for use as radio
    transmitters.[^87] ARRL and the National Public Safety
    Telecommunications Council state that it is not practical to
    incorporate features in the hardware of an amateur transceiver to
    prevent transmissions outside of amateur bands.[^88] Intel, ITI,
    Cisco, Raytheon, ARRL and the Electronic Frontier Foundation oppose
    regulating the marketing of high speed D/A converters, generally
    stating that such a requirement would be burdensome, increase costs
    to consumers and not necessary because these devices do not pose a
    risk of interference.[^89] No parties have provided any information
    that shows that software programmable amateur transceivers or
    high-speed D/A converters present any significantly greater risk of
    interference to authorized radio services than hardware radios.
    Therefore, we decline to adopt any new regulations for amateur
    transceivers or D/A converters at this time. However, we note that
    certain unauthorized modifications of amateur transmitters are
    unlawful,[^90] and may revisit both of these issues in the future if
    misuse of such devices results in significant interference to
    authorized spectrum users.

### Submission of radio software

63. As described below, we are eliminating the rule that a manufacturer
    supply radio software (source code) to the Commission upon request
    because such software is generally not useful for certification
    review and may have become an unnecessary barrier to entry.[^91] We
    are also requiring applicants for certification of software defined
    radios to supply a high level operational description of the
    software that controls the RF operating parameters.

64. In the *Notice,* we proposed to make these changes because of the
    expected complexity and variations in the programming languages of
    the software used to control radio operating parameters, stating
    that examining radio software is unlikely to be an effective way to
    determine whether unauthorized changes have been made to a
    device.[^92] We stated that a high level description of the radio
    software and flow diagram of how the software works would be more
    useful in understanding the operation of a device and its security
    measures than a copy of the software.

65. Parties generally support requiring the submission of a software
    description and flow diagram with a certification application rather
    than actual radio software.[^93] Motorola agrees that receiving
    actual software would not prevent unauthorized changes because
    source code is compiled before loading and additional changes are
    made after the loading process, and that the requirement is
    superfluous because the rules require the equipment to comply with
    technical requirements and require manufacturers to provide sample
    devices and records upon request. [^94] It requests that the
    Commission grant the material full confidential treatment because it
    would be highly proprietary software information and real
    competitive harm could be caused to a manufacturer if competitors
    were to access it.[^95] TIA believes that the Commission should
    institute appropriate safeguards to ensure that flow diagrams are
    not made available to the general public.[^96] The SDR Forum,
    Cingular/Bellsouth and the National Public Safety Telecommunications
    Council recommend that the Commission permit Telecommunication
    Certification Bodies (TCBs) to certify software defined radios
    because applicants have confidence that a TCB will keep information
    about devices confidential.[^97] The Wi-Fi Alliance supports
    removing the requirement to supply source code upon request, but
    does not believe there is a need to supply a software description
    and flow diagram because such a description will not realistically
    assist the Commission or TCBs in judging if a device meets the
    applicable authorization requirements.[^98] It states that if a
    requirement for a flow diagram is created then it should be limited
    to explaining the protection measures implemented to prevent
    unauthorized modifications to a device's software rather than an
    open-ended, comprehensive explanation of the device's software
    architecture.[^99]

66. Cingular/Bellsouth believe that the Commission should require
    applicants to submit source code for devices to ensure that certain
    operational characteristics are maintained within the scope of the
    authorization and that the transmitting device can not be
    misappropriated for improper operation.[^100] They state that if the
    Commission deletes the current requirement, it must ensure that
    software changes affecting RF emission characteristics of devices do
    not cause interference to licensed operators.[^101]

67. We are removing the requirement that an applicant for authorization
    of a software defined radio or the grantee or other party
    responsible for the compliance of a software defined radio submit a
    copy of the software that controls the radio frequency operating
    parameters upon request. We find that a copy of software source code
    is generally not be a useful aid in determining whether unauthorized
    changes have been made to the operating parameters of a device
    because software changes that have no effect on these parameters are
    frequently made by manufacturers. We also are concerned that this
    specific rule may be overly burdensome because we have observed that
    some equipment that could be authorized under the rules for software
    defined radios is not being authorized under these rules.[^102] The
    fact that the software in a device being marketed may differ
    somewhat from software previously supplied to the Commission would
    not necessarily indicate that any unauthorized changes have been
    made to a device's RF affecting operating parameters. In the event
    that questions arise about the compliance of a particular device,
    the Commission has the authority to request and examine any
    component (whether software or hardware) of a radio system when
    needed for certification under Commission rules without the need for
    a specific requirement to submit radio software. Grantees of
    equipment certification are required to maintain records of
    equipment specifications and any changes that may affect compliance
    and must make these records available for inspection by the
    Commission.[^103] Further, the party responsible for the compliance
    of the device or any party who markets the device must supply a
    sample of the device to the Commission upon request.[^104]

68. We are adopting a requirement to submit a high level software
    operational description or flow diagram. The requirement we are
    adopting is analogous to the requirements in the rules that were
    developed for hardware based equipment that require applicants for
    equipment certification to supply a block diagram, schematic diagram
    and a brief description of the circuit functions of a device, along
    with a statement describing how the device operates.[^105] In this
    regard, the software operational description or flow diagram must
    describe or show how the RF functions in the radio, including the
    modulation type, operating frequency and power level are controlled
    or modified by software, and must describe the security or
    authentication methods that are incorporated to prevent unauthorized
    software changes. The description can include text, logic or flow
    diagrams, state descriptions[^106] or other material that provides
    the Commission's staff with a reasonable understanding of the
    operation of a device being certified and whether the device
    complies with the rules. The Commission's staff will work with
    applicants for certification to ensure that these requirements are
    clear and will issue appropriate additional guidance as necessary.

69. In circumstances in which commercial information is required to be
    submitted to the government, the Commission, consistent with
    statute, may withhold such records where release would likely cause
    substantial harm to the competitive position of the submitting
    party.[^107] The Commission's rules explicitly list certain types of
    materials in the category of trade secrets and commercial and
    financial information that are automatically afforded certain
    degrees of protection from public inspection.[^108] As a general
    matter, the harm must flow from affirmative use of the information
    by competitors and not consist solely of injuries that flow from
    customer disgruntlement or public embarrassment.[^109] We also are
    obliged to consider any adverse impact that disclosure might have on
    government programs, including the impact on the Commission's
    ability to implement its statutory responsibility under the
    Communications Act.[^110]

70. We agree with TIA and Motorola that information on how software
    within a software defined radio operates would be company
    proprietary information and that making this information publicly
    available would result in competitive harm to a manufacturer.
    Further, we find that information on the security methods that
    manufacturers employ to prevent unauthorized modifications to the RF
    operating parameters of a device would be considered company
    proprietary information. Additionally, making information on
    security measures publicly available could assist unauthorized
    parties in determining ways to defeat them. We also conclude that,
    if we were to make information on software defined radio operation
    and security measures generally available to the public, entities
    seeking equipment certification may not provide sufficient
    information for the Commission to determine whether the device at
    issue would operate in compliance with our rules. Accordingly, we
    will modify Section 0.457(d) of the rules to state that the
    descriptions of the security features and software operation for a
    software defined radio are presumptively protected from public
    disclosure and will not routinely be made available for public
    inspection. This presumptive protection will apply only to the
    descriptions of the security features and software operation for a
    software defined radio and not to any other exhibits in the
    application for certification which will normally be made available
    for public inspection after grant of the application. An applicant
    for certification of a software defined radio must file a specific
    request and pay the appropriate filing fee to have other exhibits in
    the application held confidential, assuming the exhibits are
    eligible for confidential treatment. To avoid possible delays in
    processing applications, applicants should ensure that exhibits for
    which confidential treatment is automatically afforded or for which
    it is requested are clearly identified and that these exhibits do
    not contain information that is not eligible for such treatment.

71. We decline to allow TCBs to certify software defined radios at this
    time. The changes that we are adopting to automatically afford
    confidential treatment to the description of software and security
    features in software defined radio applications address the
    confidentiality concerns of parties who requested that TCBs be
    allowed to certify software defined radios to protect this
    information from public disclosure. Additionally, as the Commission
    has previously stated, because software defined radio is a new
    technology, TCBs will not be permitted to certify software defined
    radios until the Commission has more experience with them and can
    properly advise TCBs on how to apply the applicable rules.[^111] The
    Commission's Laboratory maintains a list of types of devices,
    including software defined radios, that TCBs are excluded from
    certifying. The Laboratory will remove software defined radios from
    this exclusion list when it determines that TCBs are capable of
    certifying them.

### Automatic frequency selection by unlicensed devices

72. We are changing Part 15 of the rules to allow certification of
    unlicensed transmitters that are capable of operation outside of
    permissible Part 15 frequency bands, provided the transmitters
    incorporate an automatic frequency selection mechanism to ensure
    that they operate only on frequencies where unlicensed operation is
    permitted when operated in the United States.

73. Many frequency bands where unlicensed operation is permitted are not
    harmonized worldwide.[^112] Unlicensed transmitters are now being
    manufactured in which the frequency range of operation is software
    selectable to allow operation in multiple countries. However, a
    transmitter cannot be approved in the United States unless it is
    capable of complying with the technical requirements of the rule
    part under which it will be operated.[^113] Therefore, an unlicensed
    transmitter that is capable of operation outside permissible bands
    of operation under Part 15 of the rules cannot be certified for
    operation in the United States. Manufacturers would like the ability
    to certify devices to operate over a wider frequency range than is
    permissible in the United States, but incorporate technology that
    selects the appropriate operating frequency ranges based on the
    country in which they are used. A device could limit its operation
    to permissible frequencies when used in the United States, but could
    operate on additional frequencies as permitted in other countries.
    This approach could allow the production of devices that could be
    used worldwide, or at least in a number of different countries, and
    eliminate the need for manufacturers to produce multiple versions of
    a device for use in different countries.

74. In the *Notice*, we proposed to allow certification of Part 15
    devices that are capable of operating on non-Part 15 frequencies to
    benefit consumers and manufacturers by reducing production costs and
    allowing production of devices that can be used in both the United
    States and other countries.[^114] We proposed to require that such
    devices incorporate a method to determine the country of operation
    and select the appropriate operating frequency range, which must be
    limited to permissible Part 15 frequencies when the device is used
    in the United States.[^115]

75. Several parties support the proposals to allow frequency selectable
    devices and recommend that the Commission allow the use of the IEEE
    802.11d feature for enabling/disabling transmissions in certain
    bands.[^116] The Wi-Fi Alliance states that the IEEE 802.11d feature
    uses a master/client scheme similar to multi-band mobile phones
    where a signal from the controller indicates the proper channels to
    the client devices.[^117] The Wi-Fi Alliance, ITI and Dell recommend
    that the Commission limit the certification of access points[^118]
    to the frequency range permitted in the United States.[^119] Several
    parties believe that allowing an individual end user to configure a
    master/client system would create an unnecessary risk that a device
    would be deployed on an unauthorized frequency, but support giving
    the ability to configure a system to a system installer in an
    enterprise or service provider environment.[^120] Intel states that
    devices operating under the control of a master controller should be
    exempted from DFS or other requirements, which would be consistent
    with the U-NII proceeding and allow devices to be manufactured much
    more economically while not sacrificing interference
    protection.[^121]

76. The Society for Broadcast Engineers opposes allowing the importation
    and marketing of devices that are capable of operating in the
    2483.5-2500 MHz band because they may cause interference to
    grandfathered broadcast auxiliary service stations that operate in
    this band.[^122] It states that the need for a device to be able to
    determine the country it is located in would likely increase the
    cost of the device beyond that practical for a mass produced, low
    cost Part 15 device, and there would be a strong incentive to defeat
    the 2483.5-2500 MHz frequency lock out.[^123]

77. We will allow certification of Part 15 devices that operate outside
    permissible frequency bands using a master/client model. The terms
    "master" and "client" were defined in the U-NII proceeding for U-NII
    devices.[^124] We will define these terms for other types of Part 15
    devices consistent with the U-NII definitions. That is, a master
    device will be defined as a device operating in a mode in which it
    has the capability to transmit without receiving an enabling signal.
    In this mode it is able to select a channel and initiate a network
    by sending enabling signals to other devices. A network always has
    at least one device operating in master mode. A client device will
    be defined as a device operating in a mode in which the
    transmissions of the device are under control of the master. A
    device in client mode is not able to initiate a network. We, of
    course, require master devices marketed within the United States to
    operate only in permissible Part 15 frequency bands, which will
    ensure that they enable operation of client devices only within
    permissible Part 15 frequency bands. Manufacturers that wish to
    market master devices that are hardware-capable of operating outside
    of permissible Part 15 frequency bands for use in other countries,
    but use software to limit their operation to permissible Part 15
    frequency bands, must incorporate security features into them to
    limit the operating frequency range for devices marketed in the
    United States and must certify the devices as software defined
    radios. Different software can then be installed in master devices
    that are used outside of the United States to change the operating
    frequency range for use in other countries. Client devices that can
    also act as master devices must meet the certification requirements
    of a master device, and thus must be certified as software defined
    radios if the manufacturer wishes to incorporate additional
    frequency bands for use in other countries.

78. We will allow the certification of client devices such as wireless
    LAN cards used in desktop or notebook computers if they have the
    capability of operating outside permissible Part 15 frequency
    bands.[^125] As defined above, client devices may transmit only
    under the control of a master device. Because master devices are
    limited to operation on permissible Part 15 frequencies, they will
    direct client devices to operate on only permissible Part 15
    frequencies.

79. The changes we are adopting will benefit manufacturers by allowing
    production of devices that can be used in multiple countries, thus
    reducing equipment costs*.*[^126] At the same time, the requirement
    to limit the frequency range of master devices sold in the United
    States will minimize the likelihood that devices will operate
    outside permissible frequency bands and cause interference to
    authorized services.

## Interruptible Spectrum Leasing

80. In this section, we are describing the technical methods that a
    cognitive radio could use to enable interruptible secondary use of
    licensed spectrum by other parties. The concepts in this section
    would apply to lessors who want a high level assurance of reclaiming
    leased spectrum when they need it.

81. In the *Notice*, we sought comment on how cognitive radios could
    enable secondary markets in licensed spectrum. We described two
    general categories of access and reversion mechanisms that could be
    used by a lessee to gain access to spectrum on a secondary basis and
    allow the spectrum to revert back to the primary licensee when
    necessary.[^127] One category relies on the overt permission of the
    licensee and the other relies on equipment that senses the spectrum
    operating environment.[^128]

82. A particular access/reversion mechanism described in the *Notice*
    that relies on the overt permission of the licensee is a "beacon"
    that can enable leased spectrum. Under this approach, use can be
    interrupted quickly with a high degree of reliability.[^129] In a
    beacon system, the lessee's transmitter must have the ability to
    receive a control signal sent continuously by the licensee at times
    when transmissions by the lessee are permitted. The lessee may not
    commence transmissions if the beacon signal is not received, and if
    the beacon signal is present but then stops while the lessee is
    transmitting, transmissions must cease within a specified time
    interval. The beacon could be an RF signal sent by the licensee on a
    designated control frequency, or it may be a signal received over a
    physical connection such as fiber, copper or coaxial cable. If the
    beacon signal suffers from unfavorable propagation or the physical
    connection is lost, the licensee has "fail-safe" protection against
    interference, because if the lessee cannot hear the beacon signal,
    it must cease transmission.

83. Another mechanism that relies on the overt permission of the
    licensee involves a "handshaking" approach. This would offer more
    reliability and security by requiring the lessee to receive explicit
    permission to use spectrum before each transmission. However,
    implementation of a handshaking approach may increase the complexity
    of implementation. Other examples of access/reversion mechanisms
    that rely on the overt permission of a licensee include one that
    would allow a lessee to transmit until the licensee signals the user
    to cease operation. The reliability of this approach is limited
    because a lessee who is unable to hear the signal ordering it to
    cease operation may not be aware that it should relinquish use of
    the spectrum.

84. In the *Notice*, we sought comment on possible regulatory approaches
    for the use of the beacon model or other access/reversion mechanisms
    for interruptible spectrum leasing. One approach would be to
    establish a technical model for reliable access to and secure
    reversion of leased spectrum that certain licensees would have the
    option of using to structure their leasing arrangements. Another
    would be for the Commission to adopt the technical model in the form
    of rules for lessees of spectrum. We stated that under either
    approach, the establishment of technical criteria for cognitive
    radio devices to provide access/reversion of leased spectrum could
    help to achieve the significant benefits of spectrum leasing without
    detrimentally affecting licensees' ability to access spectrum.

85. Although there was interest in the availability of interruptible
    spectrum leasing,[^130] parties did not address the specific
    technical mechanisms we set out in the *Notice.* Several parties
    generally express concern about the technical viability of
    interruptible spectrum leasing.[^131] However, two of these parties
    claim that interruptible leasing may be practical on trunked
    systems, which have a centralized system control.[^132] Other
    parties believe that cognitive based leasing mechanisms such as
    beacon networks are possible, but worry that they would result in
    high leasing costs.[^133] No party suggested that it would be
    helpful at this point for the Commission to adopt a particular
    technical model for interruptible spectrum leasing.

86. As described below, we find that there are technologies available
    now or under development that could safely allow for interruptible
    spectrum leasing. We find that cognitive radio technologies, or even
    trunked radio technologies, would allow implementation of the
    following general principles that interested parties state would be
    essential to enable interruptible leased use of spectrum:

```{=html}
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```
1.  The licensee must have positive control as to when the lessee can
    access the spectrum.

2.  The licensee must have positive control to terminate the use of the
    spectrum by the lessee so it can revert back to the licensee's use.

3.  Reversion must occur immediately upon action by the licensee unless
    that licensee has made specific provisions for a slower reversion
    time.

4.  The equipment used by the licensee and the lessee must perform
    access and reversion functions with an extremely high degree of
    reliability.

5.  The equipment used by the licensee and the lessee must incorporate
    security features to prevent inadvertent misuse of, and to thwart
    malicious misuse of, the licensee's spectrum.

```{=html}
<!-- -->
```
87. There are at least three different technical approaches that
    currently exist or are under development that a licensee could
    employ that would comply with the intent of these principles and
    enable interruptible spectrum leasing. One approach would be for a
    licensee to allow leasing using an existing trunked system. A
    trunked system uses a central controller to select the operating
    frequencies of radios in the system. When a radio is ready to begin
    transmitting, it sends a request for an operating frequency to a
    central controller over a control channel. The controller
    dynamically assigns an operating frequency to that radio and the
    other radios with which it communicates. Such a centralized system
    could be used to assign channels to radios operating under the terms
    of a lease, or de-assign channels when a licensee needs to use the
    spectrum. This could be done through a wireless control channel as
    is currently done to assign channels to radios in the system.
    Alternatively, information about leased channel availability could
    be provided by the trunked system controller to the lessee's
    equipment through a wired link.

88. The beacon approach proposed in the *Notice* and described above is
    similar to a trunked system in that it uses a centralized controller
    to enable operation of lessee's equipment. The beacon could operate
    either on a frequency licensed to the public safety entity or on a
    separate control frequency in another band. The approach would
    require additional infrastructure such as the beacon transmitters
    and radios that are capable receiving the beacon and adjusting their
    operation in response to the beacon signal.

89. A third method that could enable leased use of spectrum is by an
    exchange of "tokens" sent to the lessee's devices. Token approaches
    rely on the encrypted exchange of unique information to verify a
    user's identity when opening and maintaining a secure communications
    exchange. Tokens would provide a means of ensuring that lessees
    transmit only on available frequencies when they receive an
    electronic token authorizing them to do so. These tokens could also
    enforce terms of a lease such as the specific period of time that
    transmission on a frequency is allowed, thus providing a licensee
    with a high level of confidence that lessees will vacate the
    spectrum when required under the terms of the lease. Such token
    technology is already in use in other resource allocation problems,
    such as the enforcement of software license terms and avoiding data
    transmission conflicts between computers on local area
    networks.[^134]

90. At this point, we see no need to adopt any particular technical
    model for interruptible spectrum leasing. Ultimately, a licensee
    must itself be satisfied that the technical mechanism being
    implemented under a lease does in fact provide it with the ability
    in real time to reclaim use of its spectrum when necessary.

# Procedural matters

91. *Final Regulatory Flexibility Analysis*. The Final Regulatory
    Flexibility Analysis for this Report and Order, pursuant to the
    Regulatory Flexibility Act, *see 5* U.S.C. § 604, is contained in
    Appendix C.

92. This document contains modified information collection requirements
    subject to the Paperwork Reduction Act of 1995 (PRA), Public Law
    104-13. It will be submitted to the Office of Management and Budget
    (OMB) for review under Section 3507(d) of the PRA. OMB, the general
    public, and other Federal agencies are invited to comment on the new
    or modified information collection requirements contained in this
    proceeding. In addition, we note that pursuant to the Small Business
    Paperwork Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C.
    3506(c)(4), we previously sought specific comment on how the
    Commission might "further reduce the information collection burden
    for small business concerns with fewer than 25 employees."

93. In this present document, we have assessed the effects of requiring
    certain devices to contain security features and be certified as
    software defined radios and of requiring a software description in
    place of software source code at the time of product certification.
    We find that these changes would affect all businesses equally
    regardless of size.

94. For further information regarding this Report and Order, contact Mr.
    Hugh L. Van Tuyl, Office of Engineering and Technology, (202)
    418-7506, e-mail
    [Hugh.VanTuyl@fcc.gov](mailto:Hugh.Vantuyl@fcc.gov).

# ordering clauses

95. Accordingly, IT IS ORDERED that pursuant to the authority contained
    in Sections 4(i), 301, 302, 303(e), 303(f) and 303(r) of the
    Communications Act of 1934, as amended, 47 USC Sections 154(i), 301,
    302, 303(e), 303(f) and 303(r), this Report and Order IS ADOPTED and
    Parts 0, 2 and 15 of the Commission's Rules are amended as set forth
    in Appendix A effective 90 days after publication in the Federal
    Register.

96. IT IS FURTHER ORDERED that the Commission\'s Consumer and
    Governmental Affairs Bureau, Reference Information Center, SHALL
    SEND a copy of this Report and Order, including the Final Regulatory
    Flexibility Analysis in Appendix C, to the Chief Counsel for
    Advocacy of the Small Business Administration.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

# Appendix A: FINAL Rule Changes {#appendix-a-final-rule-changes .unnumbered}

Part 0 of Title 47 the Code of Federal Regulations is amended as
follows:

1.  The authority citation for Part 0 continues to read as follows:

    AUTHORITY: Secs. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155.

2.  Section 0.457 is amended by appending the following text to
    paragraph (d)(1)(ii)

    § 0.457 Records not routinely available for public inspection.

\* \* \* \* \*

\(d\) \* \* \*

\(1\) \* \* \*

\(ii\) \* \* \*Portions of applications for equipment certification of
software defined radios that describe the operation of the device's
software and security features will not be made available for
inspection.

\* \* \* \* \*

Part 2 of Title 47 of the Code of Federal Regulations is amended as
follows:

3.  The authority citation for Part 2 continues to read as follows:

AUTHORITY: 47 U.S.C. 154, 302a, 303 and 336, unless otherwise noted.

Section 2.1 is revised by changing the following definition:

4.  § 2.1 Terms and definitions.

\* \* \* \* \*

\(c\) \* \* \*

*Software defined radio.* A radio that includes a transmitter in which
the operating parameters of frequency range, modulation type or maximum
output power (either radiated or conducted), or the circumstances under
which the transmitter operates in accordance with Commission rules, can
be altered by making a change in software without making any changes to
hardware components that affect the radio frequency emissions.

\* \* \* \* \*

5.  Section 2.932 is revised by removing paragraph (e).

6.  Section 2.944 is revised to read as follows:

    § 2.944 Software defined radios.

    \(a\) Manufacturers must take steps to ensure that only software
    that has been approved with a software defined radio can be loaded
    into the radio. The software must not allow the user to operate the
    transmitter with operating frequencies, output power, modulation
    types or other radio frequency parameters outside those that were
    approved. Manufacturers may use means including, but not limited to
    the use of a private network that allows only authenticated users to
    download software, electronic signatures in software or coding in
    hardware that is decoded by software to verify that new software can
    be legally loaded into a device to meet these requirements and must
    describe the methods in their application for equipment
    authorization.

    \(b\) Any radio in which the software is designed or expected to be
    modified by a party other than the manufacturer and would affect the
    operating parameters of frequency range, modulation type or maximum
    output power (either radiated or conducted), or the circumstances
    under which the transmitter operates in accordance with Commission
    rules, must comply with the requirements in paragraph (a) of this
    section and must be certified as a software defined radio.

    \(c\) Applications for certification of software defined radios must
    include a high level operational description or flow diagram of the
    software that controls the radio frequency operating parameters.

7.  Section 2.1033 is revised by adding new paragraphs (b)(12) and
    (c)(18) to read as follows:

    § 2.1033 Application for certification.

    \* \* \* \* \*

    \(b\) \* \* \*

    \(12\) An application for certification of a software defined radio
    must include the information required by §2.944.

    \* \* \* \* \*

    \(c\) \* \* \*

    \(18\) An application for certification of a software defined radio
    must include the information required by §2.944.

    \* \* \* \* \*

    Section 2.1043 is amended by revising paragraph (b)(3) to read as
    follows:

    § 2.1043 Changes in certificated equipment.

    \* \* \* \* \*

    (b)\* \* \*

    \(3\) A Class III permissive change includes modifications to the
    software of a software defined radio transmitter that change the
    frequency range, modulation type or maximum output power (either
    radiated or conducted) outside the parameters previously approved,
    or that change the circumstances under which the transmitter
    operates in accordance with Commission rules. When a Class III
    permissive change is made, the grantee shall supply the Commission
    with a description of the changes and test results showing that the
    equipment complies with the applicable rules with the new software
    loaded, including compliance with the applicable RF exposure
    requirements. The modified software shall not be loaded into the
    equipment, and the equipment shall not be marketed with the modified
    software under the existing grant of certification, prior to
    acknowledgement by the Commission that the change is acceptable.
    Class III changes are permitted only for equipment in which no Class
    II changes have been made from the originally approved device.

NOTE TO PARAGRAPH (b)(3):

Any software change that degrades spurious and out-of-band emissions
previously reported to the Commission at the time of initial
certification would be considered a change in frequency or modulation
and would require a Class III permissive change or new equipment
authorization application.

\* \* \* \* \*

Part 15 of Title 47 of the Code of Federal Regulations is amended as
follows:

8.  The authority citation of Part 15 continues to read as follows:

    AUTHORITY: 47 U.S.C. 154, 302, 303, 304, 307, 336, and 544A.

9.  A new Section 15.202 is added to read as follows:

    § 15.202 Certified operating frequency range

    Client devices that operate in a master/client network may be
    certified if they have the capability of operating outside
    permissible Part 15 frequency bands, provided they operate on only
    permissible Part 15 frequencies under the control of the master
    device with which they communicate. Master devices marketed within
    the United States must be limited to operation on permissible Part
    15 frequencies. Client devices that can also act as master devices
    must meet the requirements of a master device. For the purposes of
    this section, a master device is defined as a device operating in a
    mode in which it has the capability to transmit without receiving an
    enabling signal. In this mode it is able to select a channel and
    initiate a network by sending enabling signals to other devices. A
    network always has at least one device operating in master mode. A
    client device is defined as a device operating in a mode in which
    the transmissions of the device are under control of the master. A
    device in client mode is not able to initiate a network.

# Appendix B: LIST OF COMMENTING PARTIES {#appendix-b-list-of-commenting-parties .unnumbered}

**[Parties filing comments]{.underline}**

1.  Electronic Frontier Foundation

2.  The Technology Companies/Center for Internet and Society

3.  New York State, Office for Technology, Statewide Wireless Network

4.  Mesh Networks

5.  Wireless Broadband Operators Coalition

6.  The Wi-Fi Alliance

7.  IEEE USA

8.  IEEE 802

9.  Data Flow Systems, Inc.

10. Tucson Amateur Packet Radio Corporation

11. Vanu, Inc.

12. Itron, Inc.

13. National Public Safety Telecommunications Council

14. Information Technology Industry Council

15. Shared Spectrum Company

16. Motorola, Inc.

17. Cingular Wireless LLC and BellSouth Corporation

18. Public Knowledge and Consumers Union

19. Cisco Systems, Inc.

20. Ericsson Inc

21. Sirius Satellite Radio Inc. and XM Radio Inc.

22. Eli Sheffer

23. Cellular Telecommunications & Internet Association

24. Globalstar, L.P. et al.

25. Telecommunications Industry Association

26. Verizon Wireless

27. Association of Public-Safety Communications Officials-International,
    Inc.

28. Nokia Inc.

29. Thomas W. Hazlett and Matthew L. Spitzer

30. Alvarion Inc.

31. Nextel Partners, Inc.

32. Wireless Communications Association International, Inc.

33. Society of Broadcast Engineers, Inc.

34. Allen Petrin

35. Raytheon

36. Access Spectrum, LLC

37. Dell

38. Pulse Link

39. Intel Corporation

40. Radio Amateur Satellite Corp.

41. SDR Forum

42. Industrial Telecommunications Association, Inc.

43. HYPRES, Inc.

44. ARRL, the National Association for Amateur Radio

45. NAS/Committee on Radio Frequencies

46. National Association of Manufacturers and MRFAC, Inc.

47. The Port Authority of New York and New Jersey

48. Texas Instruments Incorporated

49. E-ZPass Interagency Group

50. National Radio Astronomy Observatory

51. V-COMM

52. Charles Wimber

53. WaveRider Communications

54. Ken Krechmer

55. Fredric D. Letson, KC2JKQ

56. Nickolaus E. Leggett

> **[Parties filing reply comments]{.underline}**

1.  Cornell University

2.  The Technology Companies

3.  IEEE 802.18

4.  New York State Office for Technology

5.  Shared Spectrum Company

6.  V-Comm, L.L.C.

7.  Verizon Wireless

8.  Sprint

9.  Society of Broadcast Engineers

10. AT&T Wireless Services, Inc.

11. Intel Corporation

12. Sirius Satellite Radio, Inc. and XM Radio, Inc.

13. Nextel Partners, Inc.

14. Wireless Broadband Operators Coalition

15. National Telecommunications and Information Administration

# Appendix C: FINAL Regulatory Flexibility Analysis {#appendix-c-final-regulatory-flexibility-analysis .unnumbered}

As required by the Regulatory Flexibility Act (RFA),[^135] an Initial
Regulatory Flexibility Analysis (IRFA) was incorporated in the *Notice
of Proposed Rule Making and Order, Facilitating Opportunities for
Flexible, Efficient, and Reliable Spectrum Use Employing Cognitive Radio
Technologies* (*Notice*).[^136] The Commission sought written public
comments on the proposals in the Notice, including comment on the
IRFA.[^137] This Final Regulatory Flexibility Analysis conforms to the
RFA.[^138]

**A. Need for, and Objectives of, the Report and Order**

Advances in technology are creating the potential for radio systems to
use radio spectrum more intensively and more efficiently than in the
past. Software-defined and cognitive, or "smart," radios are allowing
and will increasingly allow more intensive access to, and use of,
spectrum than possible with traditional, hardware-based radio systems.
In this Report and Order, the Commission continues the process of
modifying the rules to reflect these ongoing technical developments in
radio technologies. The Commission first adopted rules for software
defined radios in 2001, recognizing that manufacturers were beginning to
use software to help determine the RF characteristics of radios, and
that the equipment rules, which assumed hardware changes were needed to
modify a radio's behavior, held the potential of discouraging
development of software defined radios by requiring repeated approvals
for repeated software changes. In light of the Commission's experience
with these rules, and the record in this proceeding, it is modifying and
clarifying the equipment rules to further facilitate the development and
deployment of software defined and cognitive radios.

In the Report and Order, the Commission makes several changes to Parts 2
and 15 of the rules. Specifically, it:

1)  eliminates the requirement for applicants and grantees of
    certification of software defined radios to supply a copy of the
    software that controls the RF operating parameters of the radio upon
    request

2)  requires applicants for certification of software defined radios to
    supply a high level operational description of the software that
    controls the radio frequency operating parameters

3)  requires that radios in which the software that controls the RF
    operating parameters is designed or expected to be modified by a
    party other than the manufacturer to incorporate a means to prevent
    unauthorized software changes, and requires such radios to be
    certified as software defined radios

4)  allows certification of unlicensed transmitters that have the
    capability of operating outside permissible Part 15 frequency bands,
    provided the transmitters incorporate a software control to limit
    operation to permissible Part 15 frequency bands when used in the
    United States

**B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA**

> None.

**C. Description and Estimate of the Number of Small Entities To Which
the Rules Apply**

The RFA directs agencies to provide a description of, and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted.[^139] The RFA defines the
term "small entity" as having the same meaning as the terms "small
business," "small organization," and "small business concern" under
Section 3 of the Small Business Act.[^140] Under the Small Business Act,
a "small business concern" is one that: (1) is independently owned and
operated; (2) is not dominant in its field of operations; and (3) meets
may additional criteria established by the Small Business Administration
(SBA).[^141]

**Wireless Communications Equipment Manufacturers**

The SBA has established a small business size standard for radio and
television broadcasting and wireless communications equipment
manufacturing. Under this standard, firms are considered small if they
have 750 or fewer employees.[^142] Census Bureau data for 1997 indicate
that, for that year, there were a total of 1,215 establishments[^143] in
this category.[^144] Of those, there were 1,150 that had employment
under 500, and an additional 37 that had employment of 500 to 999. The
percentage of wireless equipment manufacturers in this category is
approximately 61.35%,[^145] so the Commission estimates that the number
of wireless equipment manufacturers with employment under 500 was
actually closer to 706, with and additional 23 establishments having
employment of between 500 and 999. Given the above, the Commission
estimates that the majority of wireless communications equipment
manufacturers are small businesses.

**D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements**

Unlicensed transmitters are required to be certified before they can be
imported into or marketed within the United States. The certification
process requires the manufacturer or other party responsible for
compliance to have the equipment tested and electronically file an
application form, measurement report and other information on the
equipment with the Commission or a designated Telecommunication
Certification Body (TCB). Software defined radios at present may be
approved only by the Commission and not by TCBs, although the Commission
has stated that it will eventually allow TCBs to approve them. The
Report and Order does not change this requirement.

Applicants for certification of a software defined radio will be
required to supply a high level operational description of the software
that controls the radio frequency operating parameters.

Manufacturers of radios in which the software that controls the radio
frequency operating parameters is designed or expected to be modified by
a party other than the manufacturer must incorporate a means to prevent
unauthorized software changes that must be described in the application
for certification. Such software changeable radios must be declared as
software defined radios in the application for certification. Most
radios at the present are not software modifiable, and manufacturers of
those that are generally already take steps to prevent unauthorized
modifications, so we expect that only rarely would manufacturers have to
redesign equipment to comply with this requirement.

E.  **Steps Taken to Minimize Significant Economic Impact on Small
    Entities, and Significant Alternatives Considered**

The RFA requires an agency to describe any significant alternatives that
it has considered in reaching its proposed approach, which may include
the following four alternatives (among others): (1) the establishment of
differing compliance or reporting requirements or timetables that take
into account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use of
performance, rather than design, standards; and (4) an exemption from
coverage of the rule, or any part thereof, for small entities.[^146]

The Commission sought comment in the *Notice* about whether it should
make compliance with the software defined radio rules, including the
requirement to demonstrate that a radio incorporates security features,
mandatory rather than optional for certain types of radio transmitters.
Based on the comments received, the Commission made these requirements
mandatory only for the small subset of radio transmitters in which the
software that controls the radio frequency operating parameters is
designed or expected to be modified by a party other than the
manufacturer. This change will ensure that radio transmitters can not be
easily modified and cause interference to authorized services, while
minimizing the filing burden on applicants for certification by
requiring only a small number of devices to be certified as software
defined radios.

The Commission simplified the filing requirements for software defined
radios to benefit all entities, including small entities. It eliminated
the requirement to supply software source code upon request because such
software is not generally useful for certification review and may have
become an unnecessary barrier to entry. The Commission will instead
require the submission of a software description at the time of
certification as supported by a number of parties in comments. Because
such a description would generally be considered company proprietary
information, the Commission will automatically hold such information
confidential without the need for applicants for certification to file a
specific request for confidentiality and pay a fee. Eliminating the need
to file a specific confidentiality request and pay a fee is expected to
benefit small entities that have fewer resources to comply with
regulatory requirements.

[Report to Congress]{.underline}: The Commission will send a copy of the
Report and Order, including this FRFA, in a report to be sent to
Congress pursuant to the Congressional Review Act, *see* 5 U.S.C. §
801(a)(1)(A). In addition, the Commission will send a copy of the Report
and Order, including FRFA, to the Chief Counsel for Advocacy of the
Small Business Administration. A copy of the Report and Order and FRFA
(or summaries thereof) will also be published in the Federal Register.
*See* 5 U.S.C. § 604(b).

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

*Re: Facilitating Opportunities for Flexible, Efficient, and Reliable
Spectrum Use Employing Cognitive Radio Technologies ET Docket No.
03-108; Report and Order*

I've been fortunate to be involved in our work on cognitive radio
technologies since helping the Office of Engineering and Technology open
its workshop on cognitive radio technologies in the spring of 2003. I
remarked then that cognitive radios could play a key role in shaping our
spectrum use in the future. As we see in our item today, the enormous
potential of cognitive radios is being realized increasingly every day.
I very much appreciate the effort of OET and others in pushing this
forward -- making sure our rules keep pace with this cutting edge
technology.

I believe that cognitive radios will play an important role in "spectrum
facilitation." That means stripping away barriers -- regulatory,
economic, or technical -- to get spectrum into the hands of operators
serving consumers at the most local levels. Cognitive radios can
literally leapfrog the technical and legal problems that currently
hamper many of today's spectrum access opportunities. Spectrum policy is
a two-sided coin: a framework for innovation on one side, with spectrum
facilitation on the other.

These technologies should lead to the advent of smarter unlicensed
devices that make greater use of spectrum than is possible today.
Cognitive radios may also provide licensees with innovative ways to use
their current spectrum more efficiently, and to lease their spectrum
more easily on the secondary market. I've seen cognitive radios up close
and am just amazed by their potential.

While we don't tackle the issue here, I remain particularly interested
in our proposal from the original NPRM to allow higher power operation
for unlicensed devices operating in rural and other areas of low
spectrum use. I regularly hear from WISPs across the country that they
need improved access to spectrum. Higher power operation can drive
broadband deployment deeper and farther into all parts of America.

I also find the discussion of interruptible spectrum leasing very
useful. Such a development may enable previously reluctant licensees to
explore a technological fix to address some of the current challenges of
spectrum leasing. It has been suggested that interruptible spectrum use
could be a tool for public safety licensees should we decide to allow
them to lease their spectrum to commercial providers in the future.
While I remain unsure whether such a policy change is appropriate in
light of our Herculean work on public safety spectrum use in the 700 and
800 MHz bands over the past couple of years, I very much appreciate the
value in having a discussion on the technical aspects of interruptible
spectrum leasing.

For these reasons, I enthusiastically support this item.

[^1]: *See* 47 C.F.R. §§ 15.323 and 15.407(h).

[^2]: *See* [*FCC Approves First Software Defined
    Radio*](http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-254463A1.doc),
    News Release dated November 19, 2004.

[^3]: *See First Report and Order* in ET Docket No. 00-47, 16 FCC Rcd
    17373,17377 (2001).

[^4]: We always retain the right to request and examine any component
    (whether software or hardware) of a specific radio system when
    needed for certification under Commission rules.

[^5]: *See* 47 C.F.R. § 2.1.

[^6]: Radios with cognitive capabilities do not have to rely on software
    implementations, however. Cordless telephones, for instance, have
    long had the capability to select the best channel among a number of
    authorized channels based on relative channel availability. *See
    also* para 12, *infra.*

[^7]: Heteromorphic waveforms and other new techniques would allow two
    or more waveforms to co-exist by using different polarity, code,
    orthangonality, etc.

[^8]: *See* 47 C.F.R. §15.323. The Commission recently allocated the
    unlicensed PCS band at 1910-1915 MHz to the fixed and mobile service
    and the unlicensed PCS band at 1915-1920 MHz to Advanced Wireless
    Service (AWS).

[^9]: *See* 47 C.F.R. § 15.407(h).

[^10]: From Webster's Dictionary and artificial intelligence constructs,
    ontology is an explicit formal specification of how to represent the
    objects, concepts and other entities that are assumed to exist in
    some area of interest and the relationships that hold among them.
    See http://dictionary.reference.com/search?q=ontology.

[^11]: *See First Report and Order* in ET Docket No. 00-47, 16 FCC Rcd
    17373 (2001).

[^12]: *See* 47 C.F.R. § 2.1.

[^13]: *See* 47 C.F.R. § 2.1043(b)(3).

[^14]: *See* 47 C.F.R. § 2.925(e).

[^15]: *See* 47 C.F.R. § 2.932(e).

[^16]: *See* 47 C.F.R. § 2.944.

[^17]: *See* [*FCC Approves First Software Defined
    Radio*](http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-254463A1.doc),
    News Release dated November 19, 2004.

[^18]: *See* <http://www.vanu.com/news/prs/fcc111504.pdf>.

[^19]: *See Notice of Proposed Rule Making* in ET Docket No. 04-186, 19
    FCC Rcd 10018 (2004) and *Notice of Proposed Rule Making* in ET
    Docket No. 04‑151, 19 FCC Rcd 7545 (2004). In a *Report & Order*
    also adopted today, we are opening the 3650-3700 MHz band to
    terrestrial devices that incorporate contention-based technologies,
    FCC 05-­­­\_\_\_, ET Docket No. 04-151 (adopted March 10, 2005).

[^20]: *See Report and Order and Further Notice of Proposed Rule Making*
    in WT Docket No. 00-230, 18 FCC Rcd 20604 (2003) and *Second Report
    And Order, Order On Reconsideration, And Second Further Notice Of
    Proposed Rulemaking* in WT Docket No. 00-230, 19 FCC Rcd 17503
    (2004).

[^21]: *See Notice of Proposed Rule Making and Order* in ET Docket No.
    03-108, 18 FCC Rcd 26859 (2003).

[^22]: A list of the parties that filed comments is included in Appendix
    B. Cornell University filed its reply comments on June 3, 2004, two
    days after the reply comment deadline of June 1, 2004. Cornell
    subsequently filed a motion for leave to accept the late-filed reply
    comments on June 4, 2004, stating that no parties will be prejudiced
    by the late filing of its reply comments and that they contain
    substantial and significant arguments that will contribute to
    reasoned decision making in this proceeding. We are accepting
    Cornell's late-filed reply comments in the interest of obtaining as
    complete a record as possible in this proceeding. In addition, we
    note that several other parties filed *ex-parte* presentations after
    the close of the reply comment deadline. While the Commission is not
    obligated to consider the merits of such presentations, we will do
    so in the interest of obtaining as complete a record as possible in
    this proceeding.

[^23]: *See* [*FCC Approves First Software Defined
    Radio*](http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-254463A1.doc),
    News Release dated November 19, 2004.

[^24]: *See Notice* at 26871.

[^25]: *See Notice* at 26896.

[^26]: *See* V-Comm L.L.C. reply comments at 3-4,Verizon Wireless
    comments at 2, AT&T Wireless reply comments at 3-4,
    Cingular/Bellsouth comments at 5, CTIA comments at 5-7, Nokia
    comments at 2, Nextel Partners comments at 3, and Wireless
    Communication Association comments at 6.

[^27]: See the DoD JTRS Program web site:
    http://jtrs.army.mil/index.htm.

[^28]: Software Communications Architecture Specification, JTRS-5000,
    SCA V3.0, August 27, 2004, Prepared by the Joint Tactical Radio
    System Joint Program Office. Available at:
    http://jtrs.army.mil/sections/technicalinformation/fset_technical_sca.html.

[^29]: See the SDR Forum web site: http://www.sdrforum.org/.

[^30]: See the E2R web site at: http://e2r.motlabs.com/project_overview.

[^31]: See ITU web site at
    www.itu.int/ITU-R/study-groups/rsg8/rwp8f/index.asp, Document
    8A/121-E, 15 SEP, 2004, Annex 9 to WP 8A Chairman\'s Report;
    \"Working Document Towards a Preliminary Draft New Report: Software
    Defined Radio in Land Mobile Services\".

[^32]: See the GNU Radio web site at:
    http://www.gnu.org/software/gnuradio/.

[^33]: See <http://wwwsdrforum.org/sdr04/papers.html> for a list of
    presenters at the SDR '04 Technical Conference in November 2004.

[^34]: See the Virginia Tech CWT web site at www.cst.vt.edu.

[^35]: See the UCB web site at http://bwrc.eecs.berkeley.edu/.

[^36]: For a preview of the potential reduction in size of
    microprocessors, see examples at the Mentor Graphics web site
    (<http://www.mentor.com/products/ic_nanometer_design/techpubs/index.cfm?dt=Simulation>)
    or the Intel web site
    (<http://www.intel.com/research/silicon/nanotechnology.htm> ).

[^37]: Mitola, Joseph, III, "Cognitive Radio for Flexible Mobile
    Multimedia Communications." IEEE International Workshop on Mobile
    Multimedia Communications, 1999, 15-17 Nov. 1999,\
    Pg 3 -- 10.

[^38]: Instantiation is the actual implementation in hardware and
    software of a particular set of operating parameters. See the
    definition at
    http://searchsmallbizit.techtarget.com/sDefinition/0,sid44_gci212355,00.html.

[^39]: A rendezvous strategy is the reasoning process and protocols or
    procedures for two transceivers to arrive at common operating
    parameters such as frequency and synchronization timing.

[^40]: A heteromorphic waveform is a signal that can adapt its
    parameters and characteristics to the electromagnetic spectrum
    environment or in a purest sense can deviate from a normal, perfect,
    or mature form; having different forms at different stages of
    existence.

[^41]: See the XG Program web site at
    http://www.darpa.mil/ato/programs/xg/index.htm.

[^42]: See the contract announcement at
    http://www.prnewswire.com/cgi-bin/micro_stories.pl?ACCT=683194&TICK=RTN4&STORY=/www/story/08-15-2002/0001784186&EDATE=Aug+15,+2002.

[^43]: *See* [*FCC Approves First Software Defined
    Radio*](http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-254463A1.doc),
    News Release dated November 19, 2004.

[^44]: *See* 47 C.F.R. §§ 2.936, 2.943 and 2.946.

[^45]: In 2003 the Commission added 255 MHz of spectrum at 5.470-5.725
    GHz where U-NII equipment could operate. *See Report and Order* in
    ET Docket No. 03-122, 18 FCC Rcd 24484 (2003). The rules require
    U-NII equipment operating in this band to incorporate DFS to protect
    Federal Government Radar systems that also operate in this band.

[^46]: Many transmitters such as cellular and cordless telephones, Wi-Fi
    devices and two-way radios operate on multiple channels within a
    predetermined frequency band or bands. The fact that channels can be
    changed within predetermined bands automatically by software or
    manually by a user would not necessitate that a device be certified
    as a software defined radio. However, if the frequency range of a
    device could be changed by software then that device would have to
    be certified as a software defined radio if the software was
    designed or expected to be modified by a party other than the
    manufacturer.

[^47]: *See First Report and Order* in ET Docket No. 00-47, 16 FCC Rcd
    17373 (2001).

[^48]: *See* 47 C.F.R. § 2.1.

[^49]: *See Notice of Proposed Rule Making* in ET Docket No. 00-47, 15
    FCC Rcd 24442, 24450 (2000).

[^50]: *See* 47 C.F.R. § 15.407(h).

[^51]: *See In the Matter of Pilot Travel Centers, L.L.C., Knoxville,
    Tennessee, Notice of Apparent Liability for Forfeiture*, 19 FCC Rcd
    23113, 23114 (2004). In this forfeiture proceeding, the Commission
    issued a Notice of Apparent Liability for violations of Section
    302(b) of the Communications Act of 1934, as amended, and Section
    2.803(a)(1) of the Commission's rules for marketing unapproved radio
    transmitters. The transmitters in question were marketed as amateur
    equipment, which is normally exempt from a certification
    requirement. However, the transmitters had the capability of being
    easily altered to operate on frequency bands in the Citizen's Band
    (CB) Radio Service, so the Commission held that they met the
    definition of a CB transmitter under Section 95.603(c) of the rules,
    which requires such transmitters to be certified before they can be
    imported into or marketed within the United States. The equipment
    being marketed, which complied with all requirements for amateur
    equipment, was capable at transmitting at power levels well above
    those permitted for CB transmitters.

[^52]: *See* 47 C.F.R. § 2.932(e).

[^53]: *See* 47 C.F.R. § 2.1043(b)(3).

[^54]: *See* 47 C.F.R. § 2.944.

[^55]: *See Notice* at 26892.

[^56]: *Id.*

[^57]: *See* Intel comments at 5, Vanu comments at 4, the NPSTC comments
    at 19, Cingular/Bellsouth comments at 28, Cisco comments at 12 and
    SDR Forum comments at 6-7.

[^58]: *See* Intel comments at 5.

[^59]: *See* Vanu comments at 4.

[^60]: *See* NPSTC comments at 19 and SDR Forum comments at 6.

[^61]: *See* NPSTC comments at 19 and SDR Forum comments at 7.

[^62]: *See* Cingular/Bellsouth comments at 28.

[^63]: *See* Cisco comments at 12.

[^64]: *See* Sirius/XM reply comments at 5.

[^65]: *See* Nextel Partners comments at 8.

[^66]: *See* Wi-Fi Alliance comments at 5, Motorola comments at 19,
    Ericsson comments at 20 and TIA comments at 8.

[^67]: *See* Wi-Fi Alliance comments at 5.

[^68]: *See* Motorola comments at 19.

[^69]: *See* Ericsson comments at 20 and TIA comments at 8.

[^70]: *See* Ericsson comments at 20 and TIA comments at 8.

[^71]: *See* 47 C.F.R. § 2.1.

[^72]: The Class III permissive change allows a manufacturer to obtain
    approval for changes in the software that control the operating
    parameters in a software defined radio without the need to file a
    complete certification application or change the FCC identification
    number on the device. The Class III change is permitted only for
    radios that were declared as a software defined radio at the time of
    the initial certification. *See* 47 C.F.R. § 2.1043(b)(3).

[^73]: *See* 47 U.S.C. § 302.

[^74]: *See* 47 C.F.R. § 2.932(e).

[^75]: *Id.*

[^76]: *Id.*

[^77]: *See Notice* at 26894.

[^78]: *Id*.

[^79]: *See* AT&T Wireless comments at 16-18, Wi-Fi Alliance comments at
    6, ITI comments at 8-9, Motorola comments at 20, Cisco comments at
    12, Dell comments at 4, Intel comments at 7 and SDR Forum comments
    at 7.

[^80]: *See* Dell comments at 4 and Intel comments at 7.

[^81]: *See* Cingular/BellSouth comments at 28, Dell comments at 4,
    Intel comments at 5 and ITI comments at 7.

[^82]: *See* NTIA comments at 33-36.

[^83]: *See* 47 C.F.R. § 1.80(b)(4).

[^84]: *Id.*

[^85]: *See* 47 C.F.R. § 2.944. This section previously addressed only
    the requirement to submit a copy of radio software upon request. The
    issue of the submission of radio software is also addressed in this
    *Report and Order.*

[^86]: *See Notice* at 26893.

[^87]: *See Notice* at 26893.

[^88]: *See* ARRL comments at 9 and NPSTC comments at 20.

[^89]: *See* Intel comments at 7, ITI comments at 6, Cisco comments at
    16, Raytheon comments at 2, ARRL comments at 17, and EFF comments at
    6.

[^90]: *See* para 44 and note 53, *supra*.

[^91]: *See* 47 C.F.R. § 2.944. Failure to comply within 14 days may be
    grounds for denial of equipment authorization or monetary
    forfeitures. *See* also 47 C.F.R. § 2.1043(b)(3).

[^92]: *See Notice* at 26891.

[^93]: *See* TIA comments at 8, Motorola comments at 19-20, Vanu
    comments at 3, Technology Companies reply comments at 11, Wi-Fi
    Alliance comments at 8 and Intel comments at 3.

[^94]: *See* Motorola comments at 19.

[^95]: *See* Motorola comments at 20.

[^96]: *See* TIA comments at 8.

[^97]: *See* SDR Forum comments at 8, Cingular/Bellsouth comments at 29
    and National Public Safety Telecommunications Council comments at
    12. TCBs are private sector bodies that have been designated to
    approve radio frequency equipment in the same fashion as the
    Commission.

[^98]: *See* Wi-Fi Alliance comments at 8.

[^99]: *Id.*

[^100]: *See* Cingular/Bellsouth comments at 26.

[^101]: *Id.*

[^102]: For example, some manufacturers have indicated to Commission
    staff that they have obtained approval for U-NII transmitters in
    which additional frequency bands can be added by replacing software
    drivers, but these transmitters were not certified as software
    defined radios. The Commission made an additional 255 MHz of
    spectrum available at 5.470-5.725 GHz where U-NII equipment could
    operate in the *Report and Order* in ET Docket No. 03-122, 18 FCC
    Rcd 24484 (2003). The rules require U-NII equipment operating in
    this band to incorporate DFS to protect Federal Government Radar
    systems that also operate in this band. The Commission, the National
    Telecommunications & Information Administration (NTIA), the
    Department of Defense (DOD) and the industry are continuing to
    develop the testing methodologies for ensuring that DFS adequately
    protects Federal Government radar systems, so measurement procedures
    for certifying U-NII devices containing DFS capabilities have not
    yet been finalized. Thus, U-NII devices can not yet be certified to
    operate in the new frequency band.

[^103]: *See* 47 C.F.R. §§ 2.936(a) and 2.938(a). We note that Sections
    303(e) and Section 4(i) of the Communications Act continue to give
    the Commission authority to request data that will assist us in
    carrying out our responsibilities under the Act. *See* 47 U.S.C. §§
    154(i) and 303(e).

[^104]: *See* 47 C.F.R. §§ 2.931, 2.936(b), 2.943, 2.945 and 2.946.

[^105]: *See* 47 C.F.R. § 2.1033(b)(4) and (b)(5).

[^106]: A state description is the current or last known status of a
    process, such as a software routine in a radio.

[^107]: *See* 5 U.S.C. § 552(b) (4) (under exemption 4 of the Freedom of
    Information Act, agencies may withhold "trade secrets and commercial
    or financial information obtained from a person \[that is\]
    privileged or confidential"). *See* also [Critical Mass Energy
    Project v. NRC]{.underline}, 975 F.2d 871, 880 (D.C. Cir. 1992) (en
    banc); [National Parks & Cons. Ass'n v. Morton]{.underline}, 498
    F.2d 765 (D.C. Cir. 1974).

[^108]: *See* 47 C.F.R. § 0.457(d)(1).

[^109]: ^?^ *See, e.g.,* [CNA Fin. Corp. v. Donovan]{.underline}, 830
    F.2d 1132, 1152, 1154 & n.158 (D.C. Cir. 1987); [Public Citizen
    Health Research Group v. FDA]{.underline}, 704 F.2d 1280, 1291 n.30
    (D.C. Cir. 1983); [Gen. Elec. Co. v. NRC]{.underline}, 750 F.2d
    1394, 1402 (7th Cir. 1984); [Center to Prevent Handgun Violence v.
    United States Dep\'t of the Treasury]{.underline}, 981 F. Supp. 20,
    23 (D.D.C. 1997).

[^110]: *See, e.g.,* [Critical Mass]{.underline}, 975 F.2d at 879
    (recognizing third, program impairment prong of exemption 4); [9 to
    5 Org. for Women Workers v. Bd. Of Governors of the Fed. Reserve
    Sys.]{.underline}, 721 F.2d 1, 10 (1st Cir. 1983); [Pub. Citizen
    Health Research Group v. NIH]{.underline}, 209 F. Supp. 2d 37, 42-43
    (D.D.C. 2002) (alternative holding); [Allnet Comm. Srvs. V.
    FCC]{.underline}, 800 F. Supp. 984, 990 (D.D.C. 1992).

[^111]: *See First Report and Order* in ET Docket No. 00-47, 16 FCC Rcd
    17373 (2001).

[^112]: For example, in the United States, unlicensed operation is
    permitted in the 2400-2483.5 MHz portion of the 2400-2500 MHz ISM
    band. The 2483.5-2500 MHz portion of this ISM band is used for the
    Mobile Satellite Service (MSS) in the United States and is a
    restricted band under Part 15 of the rules. Unlicensed devices are
    not permitted to transmit in that band in the United States to
    prevent interference to the MSS, while in other countries unlicensed
    operation is permitted in all or part of the 2483.5-2500 MHz band.
    *See* 47 C.F.R. §§ 15.205, 15.247, 15.249 and 25.202.

[^113]: *See* 47 C.F.R. § 2.915(a)(1).

[^114]: *See Notice* at 26895.

[^115]: *Id.*

[^116]: *See* Wi-Fi Alliance comments at 7, ITI comments at 10, Cisco
    comments at 15 and Dell comments at 5.

[^117]: *See* Wi-Fi Alliance comments at 7. The IEEE 802.11 Task Group d
    (TGd) developed IEEE Std 802.11d-2001, which is an amendment to IEEE
    Std 802.11, 1999 Edition. The 802.11d standard describes
    specifications for operation of wireless LANs in different
    regulatory domains, e.g., different countries. According to this
    standard, a wireless LAN can transmit a data string that includes a
    code that identifies the country of operation and allows devices in
    a system to configure their operation to the parameters permitted in
    that country. When a device that is enabled for operation across
    regulatory domains commences operation, it passively scans to locate
    at least one valid channel upon which it detects IEEE Std 802.11
    data frames. The frames contain information on the country, maximum
    allowable transmit power and permitted channels of operation. The
    device can then send out a request on an authorized channel for any
    additional regulatory information that it has not yet received.

[^118]: An access point is a transceiver that operates either as a
    bridge in a peer-to-peer connection or as a connector between the
    wired and wireless segments of the network. The Commission's rules
    define access point in the context of the U-NII rules, but the term
    is also commonly used for devices that operate under other rule
    parts. *See* 47 C.F.R. § 15.403(a).

[^119]: *See* Wi-Fi Alliance comments at 7, ITI comments at 10 and Dell
    comments at 5.

[^120]: *See* ITI comments at 9, Dell comments at 4, Cisco comments at
    15 and TIA comments at 9.

[^121]: *Id.*

[^122]: *See* SBE comments at 4.

[^123]: *See* SBE comments at 4-5.

[^124]: *See* *Report and Order* in ET Docket No. 03-122, 18 FCC Rcd
    24484 (2003) at Appendix C.

[^125]: Note, however, that devices such as LAN cards that can function
    in master mode in networks like mesh networks, and in master mode
    can enable clients or peers to function outside authorized Part 15
    frequencies, must be certified as master devices.

[^126]: The ability of a manufacturer to sell equipment in other
    countries would, of course, be determined by relevant regulatory
    authorities in those countries.

[^127]: *See Notice* at 26880.

[^128]: *Id*.

[^129]: *Id*.

[^130]: *See* St. Clair County *ex parte* submission received July 23,
    2004.

[^131]: *See* New York State Office for Technology reply comments at 3,
    APCO comments at 4 and Motorola comments at 15.

[^132]: *See* New York State Office for Technology reply comments at 3
    and APCO comments at 4.

[^133]: *See* Ericsson comments at 8 and Nokia comments at 4.

[^134]: Token ring networks send an electronic message (a token)
    successively to each computer in the network. To avoid conflicts, a
    computer is permitted to send data only when it has received the
    token. If a computer has no data to send, it passes the token to the
    next computer in the network. Each computer may hold the token for
    only a limited amount of time. Token ring networks were developed in
    the 1970's and are addressed in the IEEE 802.5 standard.

[^135]: ^ ?^ *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 -- 612,
    has been amended by the Small Business Regulatory Enforcement
    Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110
    Stat. 857 (1996).

[^136]: *See* *Notice of Proposed Rule Making and Order* in ET Docket
    No. 03-108, 18 FCC Rcd 26859 (2003).

[^137]: *Id.*

[^138]: *See* 5 U.S.C. § 604.

[^139]: *See* U.S.C. § 603(b)(3).

[^140]: *Id.* § 601(3).

[^141]: *Id.* § 632.

[^142]: 1997 Economic Census, Manufacturing, Industry Series, Radio and
    Television Broadcasting and Wireless Communications Equipment
    Manufacturing, Document No. E97M-3342B (August 1999), at 9; 1997
    Economic Census, Manufacturing, Industry Series, Other
    Communications Equipment Manufacturing, Document No. EC97M-3342C
    (September 1999), at 9 (both available at
    [http://www.census.gov/prod/www/abs/97ecmani.html]{.underline}).

[^143]: The number of "establishments" is a less helpful indicator of
    small business prevalence in this context than would be the number
    of "firms" or "companies," because the latter take into account the
    concept of common ownership or control. Any single physical
    locations for an entity is an establishment, even though that
    location may be owned by a different establishment. Thus, the
    numbers given may reflect inflated numbers of businesses in this
    category, including the numbers of small businesses. In this
    category, the Census breaks out data for firms or companies only to
    give the total number of such entities for 1997, which was 1,089.

[^144]: U.S. Census Bureau, 1997 Economic Census, Industry Series:
    Manufacturing, "Industry Statistics by Employment Size," Table 4,
    NAICS code 334220 (issued August 1999).

[^145]: *Id*. Table 5, "Industry Statistics by Industry and Primary
    Product Class Specialization: 1997."

[^146]: *See* 5 U.S.C. § 603(c).