Subject: [NEXTEL-1] Amendment to Require Retail Vendors of Radio Equipment to Retain Sales Data - Denied Petitions

From: [email-masked]
Date: Wed, 27 Aug 2003 17:22:35 -0400

From: "FCC Daily Digest"
Date: Wed, 27 Aug 2003 12:00:05 -0400
Subject: Daily Digest - 08/27/2003
Vol. 22 No. 165

 AMENDMENT OF COMMISSION'S RULES TO REQUIRE RETAIL VENDORS OF CERTAIN
RADIO EQUIPMENT TO RETAIN SALES DATA.   Denied the Petitions for
Rulemaking. Action by:  Chief, Public Safety and Private Wireless
Division, Wireless Telecommunications Bureau. Adopted:  08/26/2003 by
ORDER. (DA No. 03-2725).  WTB
<http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-03-2725A1.doc>
<http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-03-2725A1.pdf>
<http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-03-2725A1.txt> 

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Federal  Communications  Commission  DA  03-  2725 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 

 In  the  Matter  of  Amendment  of  the  Commission’s  Rules  to 
Require  Retail  Vendors  of  Certain  Radio 
 Equipment  to  Retain  Sales  Data 

 Amendment  of  Part’s  5,  15,  18,  74,  80,  90,  95  and  97  of  the
 Commission’s  Rules  to  Require 
 Ownership  and  License  Tagging  of  Certain  Mobile  and  Portable 
Units 

 )  ) 
 )  ) 
 )  ) 	 RM-  10641 
 )  ) 
 )  ) 

 ORDER 

 Adopted:  August  26,  2003  Released:  August  27,  2003 

 By  the  Chief,  Public  Safety  and  Private  Wireless  Division, 
Wireless  Telecommunications  Bureau: 

 1.  Introduction.  On  November  26,  2002,  Dale  E.  Reich  (Reich) 
filed  the  captioned  Petitions  for  Rule  Makings  (Petitions)  to 
amend  the  Commission’s  Rules  as  described  in  the  caption.  1  For
 the 
 reasons  set  forth  below,  we  deny  the  Petitions. 

 2.  Background.  The  Retail  Petition  seeks  amendment  of  the 
Commission’s  Rules  to  require  retailers  of  over-  the-  counter 
two-  way  radio  equipment,  including  unlicensed  devices,  to  retain
 for  at  least  three  years  a  written  record  of  each  purchaser’s 
name,  address,  telephone  number,  and  signature,  and  any  other 
information  the  Commission  may  require.  2  Under  Reich’s  proposal,
 CMRS  providers  and  other  future  wireless  providers  would  be 
exempt  from  this  requirement.  3  The  Tagging  Petition  seeks  to 
amend  the  Commission’s  Rules  to  require  radios  authorized  under 
Parts  5,  15,  18,  74,  80,  90,  95,  and  97  of  the 
 Rules  4  that  are  “used  off  the  licensee  home  site  area”  to 
be  labeled  with  the  owner’s  name  and  address,  an  indication  of 
whether  a  license  is  required,  and  any  FCC  call  sign  or  file 
number.  5  On  January  29,  2003, 
 the  Commission  invited  comment  on  the  captioned  Petitions.  6  In
 response,  we  received  one  comment  that  supported  the  Petitions 
and  forty-  five  comments  that  opposed  the  Petitions. 

 3.  Discussion.  After  consideration  of  the  record,  we  do  not 
believe  that  the  requested  revisions  to  the  rules  are  necessary.
 We  agree  with  the  multitude  of  commenters  that  the  rule 
changes  proposed  in  the  captioned  Petitions  would  be  extremely 
burdensome  and  costly  with  little  or  no 

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 1  See  Petition  for  Rule  Making,  Changes  Requested  in  Retail 
Point  of  Sales  of  All  Over  the  Counter  Two  Way  Voice 
 or  Data  Equipment,  filed  by  Dale  E.  Reich  on  November  26, 
2002  (Retail  Petition);  Petition  for  Rule  Making,  Changes 
Requested  in  Mobile  and  Portable  Ownership  and  License  Tagging 
for  Part’s  5,  15,  18,  74,  80,  90,  95,  97,  filed  by  Dale  E. 
Reich  on  November  26,  2002  (Tagging  Petition).  

2  See  Retail  Sales  Records  Petition  (single  page).  

3  See  id.  

4  See  47  C.  F.  R.  §§  5,  15,  18,  74,  80,  90,  95,  97  (2002).

5  See  Tagging  Petition  (single  page).  

6  See  Petitions  for  Rulemaking  Filed,  Public  Notice,  Report  No. 
2591  (CGAB  rel.  Jan.  29,  2003)  (both  Petitions  were  referenced 
under  File  No.  RM-  10641). 
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 Federal  Communications  Commission  DA  03-  2725 
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 demonstrated  benefits.  7  Regarding  the  Retail  Petition, 
commenters  note  that  requiring  individualized  labeling  and 
retailer  record-  keeping  would  appear  to  extend  to  omnipresent 
consumer  devices  such  as 
 cordless  phones,  wireless  speakers,  garage  door  openers,  baby 
monitors,  remote  control  cars,  microwave  ovens,  ultrasonic  jewelry
 cleaners,  and  other  devices  that  use  radio  waves  for  purposes 
other  than 
 communications.  8  Commenters  also  note  that  the  record-  keeping 
burden  on  retailers  would  be  “utterly  unmanageable  –  hundreds  of
 millions  of  records  each  year,  presumably  in  retrievable  form.” 
9  As  REC 
 Networks  argues,  the  rules  proposed  in  the  Retail  Petition 
would  be  unduly  burdensome  as  the  collection  of  such  information
 would  require  additional  storage  and  require  additional  employees
 to  collect, 
 maintain  and  retrieve  the  information.  10  Regarding  the  Tagging 
Petition,  REC  Networks  points  out  that  the  proposal  is 
unworkable  given  that  multiple  users  may  have  individual 
operating  licenses  to  share  radio 
 equipment.  11  We  agree;  for  example,  amateur  radio  equipment 
can  be  shared  by  various  family  members  who  have  individual 
licenses.  12  Moreover,  the  Tagging  Petition  proposes  to  require 
Part  15  devices, 
 including  Wi-  Fi  networking  devices  and  other  consumer  devices, 
13  to  be  tagged  if  “used  off  the  licensee  home  site  area.”  14
 The  Tagging  Petition  does  not,  however,  address  how  such  a 
requirement  would  be 
 enforced. 

 4.  Given  the  concerns  regarding  the  burden  and  cost  of  the 
proposals,  we  agree  with  the  commenters  that  neither  the  Retail 
Petition  nor  the  Tagging  Petition  provides  “any  coherent 
elaboration  of  any  problem,  either  actual  or  perceived,  that  the
 remedies  sought  in  the  Petitions  might  be  seen  to  purport  to 
address.”  15  We  also  agree  with  the  Joint  Commenters  who  note 
that,  except  for  some  vague  references 
 to  law  enforcement,  neither  Petition  states  what  the  proposed 
rules  are  supposed  to  accomplish.  16  In  this  respect,  we  note 
that  no  law  enforcement  agency  filed  comments  in  support  of 
Reich’s  Tagging  Petition;  17 
 rather,  the  one  commenter  supporting  the  Petitions  bases  this 
view  on  the  unsubstantiated  statement  that  “[  i]  t  is  common 
knowledge  that  Amateur  Radio  equipment  is  being  utilized  by 
person(  s)  without  the 
 required  FCC  license.”  18 

 5.  Conclusion  and  Ordering  Clauses.  In  light  of  the  foregoing, 
we  conclude  that  neither  of  the  captioned  Petitions  demonstrates 
that  any  changes  to  the  Commission’s  Rules  are  needed  at  this 
time. 

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 7  See  e.  g.  CompUSA  Inc.,  Intersil  Corporation,  Symbol 
Technologies,  Inc.,  Vanu,  Inc.,  XtremeSpectrum,  Inc.  (Joint 
 Commenters)  Opposition  at  1-  4;  IEEE  Regulatory  Technical 
Advisory  Group  Opposition  at  1-  3;  Agere  Systems  Oppositon  at 
1-  4;  F.  E.  Brody  Opposition  at  4  –  6;  Nickolaus  E.  Legget 
Opposition  at  1-  3;  Information  Technology  Industry  Council  at  1
 -2;  Richard  Miller  Opposition  (single  page).  

8  See  Joint  Commenters  Opposition  at  3-  5.  

9  See  id  at  3;  see  also  REC  Networks  Opposition  at  2-  3.  

10  See  REC  Networks  Opposition  at  1-  3.  

11  Id.  

12  See,  e.  g.,  id.  

13  Id.  

14  Tagging  Petition  at  1.  

15 IEEE  Regulatory  Technical  Advisory  Group  Opposition  at  2; 
Agere  Systems  Opposition  at  3.  

16  Joint  Commenters  Opposition  at  4.  

17  The  Petitions  “assume  a  problem  exists,  but  neither 
demonstrates  that  a  problem  exists  nor  does  it  demonstrate  how 
the  recommended  actions  would  correct  the  problem.”  John  P. 
Reigel  III  Opposition  (single  page).  See  also  Stuart  Mulane 
Comments  (single  page)  (stating  that  the  proposals  are 
“nonsense”). 

 18  See  Murray  Green  Comment  in  Support  (single  page). 
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 Federal  Communications  Commission  DA  03-  2725 
 3 
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 Based  on  the  record  before  us,  we  find  the  proposals  unduly 
burdensome  with  no  demonstrated  public  benefit.  Consequently,  we 
deny  the  captioned  Petitions. 

 6.  ACCORDINGLY,  IT  IS  ORDERED  that  pursuant  to  Section  4(  i) 
of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.  § 
154(  i),  and  Sections  1.401(  c)  19  and  (e)  of  the  Commission's
 Rules, 
 47  C.  F.  R.  §§  1.401(  c)  and  (e),  the  Petitions  for  Rule 
Making  filed  by  Dale  E.  Reich  on  November  26,  2002,  ARE 
DENIED. 

 7.  This  action  is  taken  pursuant  to  delegated  authority  granted
 under  the  provisions  of  Sections  0.131(  a)  and  0.331  of  the 
Commission's  Rules,  47  C.  F.  R.  §§  0.131(  a)  and  0.331. 
 FEDERAL  COMMUNICATIONS  COMMISSION 

 D'wana  R.  Terry  Chief,  Public  Safety  and  Private  Wireless 
Division 
 Wireless  Telecommunication  Bureau 

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 19  We  note  that  both  of  Reich’s  Petitions  are  defective 
because  they  fail  to  “set  forth  the  text  or  substance  of  the 
 proposed  rule,  amendment,  or  rule  to  be  repealed,  together  with
 all  the  facts,  views,  arguments  and  data  deemed  to  support  the
 action  requested,  [nor  did  the  Petitions]  indicate  how  the 
interests  of  the  petitioner  will  be  affected.”  See  47  C.  F.  R.
 §  1.401(  c). 

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