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 Federal  Communications  Commission  FCC  05-  57 
 1 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 

 In  the  Matter  of 
 Facilitating  Opportunities  for  Flexible,  Efficient,  and  Reliable  Spectrum  Use  Employing  Cognitive 
 Radio  Technologies 

 )  ) 
 )  ) 
 )  )  ET  Docket  No.  03-  108 

 REPORT  AND  ORDER 
 Adopted:  March  10,  2005  Released:  March  11,  2005 

 By  the  Commission:  Commissioner  Adelstein  issuing  a  statement. 
 Paragraph 
 I.  INTRODUCTION  ..............................................................................................................................................  1 

 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 

 I.  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 
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 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  radios  behavior,  held  the  potential  of  discouraging  development  of  software  defined  radios  by  requiring  repeated  approvals  for  repeated  software  changes.  3  In  light  of  the 
 Commissions  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 

 1  See  47  C.  F.  R.    15.323  and  15.407(  h). 
 2  See  FCC  Approves  First  Software  Defined  Radio,  News  Release  dated  November  19,  2004. 
 3  See  First  Report  and  Order  in  ET  Docket  No.  00-  47,  16  FCC  Rcd  17373,17377  (2001). 
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 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. 
 II.  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 
 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. 
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 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  radios  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  radios  capability  to  operate  in  a  variety  of  frequency  bands  and/  or  to  use  differing  transmission  characteristics  to  access  available 
 radio  services  consistent  with  the  Commissions  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. 

 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. 
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 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 

 III.  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. 

 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  Cornells  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. 
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 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  radios  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  Commissions  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. 

 23  See  FCC  Approves  First  Software  Defined  Radio,  News  Release  dated  November  19,  2004. 
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 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. 
 A.  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 

 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. 
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 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 

 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. 
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 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  Techs  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 

 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/. 
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 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. 

 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. 
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 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. 

 B.  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 

 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,  News  Release  dated  November  19,  2004. 
 44  See  47  C.  F.  R.    2.936,  2.943  and  2.946. 
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 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. 

 1.  Cognitive  and  software  defined  radio  security 
 a.  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 
 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. 
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 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. 

 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  Commissions  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  Citizens  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. 
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 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  devices  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  Commissions  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  Commissions  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 

 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. 
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 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. 

 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. 
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 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 

 Commissions  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  equipments  certification,  thus  increasing  the  risk  of  interference  to  authorized  radio  services.  We  find  that  such  a  showing  is  in  the 
 public  interest  when  a  radios  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 
 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). 
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 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  Commissions  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. 
 b.  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  Commissions  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 

 73  See  47  U.  S.  C.    302. 
 74  See  47  C.  F.  R.    2.932(  e). 
 75  Id. 
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 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  softwares  authenticity  .77  We  also  sought  comment  on  whether  there  should  be  limits  to  a  manufacturers  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  Commissions  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 
 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. 
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 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  partys  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  partys  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  partys  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 
 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. 
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 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 

 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. 
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 unauthorized  modifications  to  a  devices  software  rather  than  an  open-  ended,  comprehensive  explanation  of  the  devices  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  devices 
 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 

 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. 
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 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  Commissions  staff  with  a  reasonable  understanding  of  the  operation  of  a  device  being  certified  and 
 whether  the  device  complies  with  the  rules.  The  Commissions  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  Commissions  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  Commissions  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 
 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,  975  F.  2d  871,  880  (D.  C.  Cir.  1992)  (en  banc); 

 National  Parks  &  Cons.  Assn  v.  Morton,  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,  830  F.  2d  1132,  1152,  1154  &  n.  158  (D.  C.  Cir.  1987);  Public 
 Citizen  Health  Research  Group  v.  FDA,  704  F.  2d  1280,  1291  n.  30  (D.  C.  Cir.  1983);  Gen.  Elec.  Co.  v.  NRC,  750  F.  2d  1394,  1402  (7th  Cir.  1984);  Center  to  Prevent  Handgun  Violence  v.  United  States  Dep't  of  the  Treasury,  981  F. 

 Supp.  20,  23  (D.  D.  C.  1997). 
 110  See,  e.  g.,  Critical  Mass,  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.,  721  F.  2d  1,  10  (1st  Cir.  1983);  Pub.  Citizen  Health  Research  Group  v.  NIH,  209  F.  Supp.  2d  37,  42-  43  (D.  D.  C.  2002)  (alternative  holding); 

 Allnet  Comm.  Srvs.  V.  FCC,  800  F.  Supp.  984,  990  (D.  D.  C.  1992). 
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 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  Commissions  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. 

 3.  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 
 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. 
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 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 

 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  Commissions  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. 
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 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 

 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. 
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 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. 
 C.  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  lessees  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 
 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. 
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 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: 

 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  licensees  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. 

 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. 
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 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  licensees  spectrum. 
 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  lessees  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  lessees  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  lessees  devices.  Token  approaches  rely  on  the  encrypted  exchange  of  unique  information  to  verify  a 
 users  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. 

 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  1970s  and  are  addressed  in  the  IEEE  802.5  standard. 
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 IV.  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. 
 V.  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  Commissions  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 
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 APPENDIX  A:  FINAL  RULE  CHANGES 
 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  devices  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 
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 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. 
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 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. 
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 APPENDIX  B:  LIST  OF  COMMENTING  PARTIES 
 Parties  filing  comments 
 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 
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 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 
 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 
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 APPENDIX  C:  FINAL  REGULATORY  FLEXIBILITY  ANALYSIS 
 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  radios  behavior,  held  the  potential  of 
 discouraging  development  of  software  defined  radios  by  requiring  repeated  approvals  for  repeated  software  changes.  In  light  of  the  Commissions  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 

 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. 
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 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 

 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). 

 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. 
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 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. 

 146  See  5  U.  S.  C.    603(  c). 
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 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:  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). 
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 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 
 Ive  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  todays  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.  Ive  seen  cognitive  radios  up  close  and  am  just  amazed  by  their  potential. 

 While  we  dont  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. 
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