Recently the FCC released a "PUBLIC NOTICE - FCC ENFORCEMENT ADVISORY", which you can read for yourself here: FCC DA-18-980A1.
The clueless anti-Chinese idiots and trolls are already chiming in claiming this makes all Baofengs 100% illegal to own, use, or at minimum transmit with. this could not be further from the truth. So lets tear this apart piece by piece.
Most official Baofengs released by Baofeng corporate and approved 3rd party models (like those sold by BTECH) should have no problem because the amateur models have already passed FCC vetting and Part 15 compliance and certification (with FCC ID) for amateur models, they have Part 90 certification (with FCC ID) for the commercial models, and legal Part 95 for the MURS/GMRS models (with their appropriate FCC IDs).
The only models affected are the "Bao-fakes" and models claiming certification without having certification, most coming from China and being sold among various questionable retailers such as MOST sellers on Amazon, including Foscam/Amcrest, and some by Radioddity.
I think the only real sticking point is they want models marketed towards amateurs to be programmed by default to 144-148 and 420-450 (and if needed 222-225). The problem there is even Yaesu, Kenwood, Icom and the rest that have various models on other bands allow for transmit and receive outside of amateur bands (15m is usually 21.0-21.5, 20m is usually 14.0-14.4, and for UHF models like 33cm they usually have access to 900-930 or beyond). So really this is hypocritical to target one specific subset of radios.
Lets take it point by point:
- some can be modified to transmit on public safety and other land mobile channels for which they are not authorized, while others are capable of prohibited wideband operations.
- 1. Almost any Part 90 and amateur based model can be modified for illegal transmissions, many of them from the big 3 can be done quite easily. So this is a user/enforcement issue, not a specific model line issue.
- 2. Their mention of wide/narrow band only relates to Part 90 equipment. They claim "The maximum allowed operational bandwidth for such radios, with limited exceptions, is 12.5 kHz", except 47 CFR § 90.209(b)(5) states (for the 2m and 70cm bands):
"Operations using equipment designed to operate with a 25 kHz channel bandwidth will be authorized a 20 kHz bandwidth. Operations using equipment designed to operate with a 12.5 kHz channel bandwidth will be authorized a 11.25 kHz bandwidth. Operations using equipment designed to operate with a 6.25 kHz channel bandwidth will be authorized a 6 kHz bandwidth. All stations must operate on channels with a bandwidth of 12.5 kHz or less beginning January 1, 2013, unless the operations meet the efficiency standard of §90.203(j)(3)." - This means all companies with a Part 90 (commercial/industrial) license issued on or before 12/31/2013 can and may still use the 25MHz wideband operation on their allowed frequency(s). Still, beginning 1/1/2013 "no new applications for the 150-174 MHz and/or 421-512 MHz bands will be acceptable for filing if the applicant utilizes channels with an authorized bandwidth exceeding 11.25 kHz, unless specified elsewhere or the operations meet the efficiency standards of §90.203(j)(3)." In the end this only pertains to Part 90, and as most Part 90 models have been tested and authorized by the FCC to have the wideband capability, this is a mute point. Amateur models are allowed to have the 25MHz wideband since the majority of 2m and 70cm band is used in wideband, except for some specific high population areas where repeater frequencies are mush more scarce and are setup using narrowband.
The trolls will latch on to this line: Because these devices must be, but have not been, authorized by the FCC, the devices may not be imported into the United States, retailers may not advertise or sell them, and no one may use them. The key the trolls ignore is many Baofengs are sold as an amateur radio, with a few of the sketchy retailers not mentioning amateur nor commercial use in their description, that makes those models imported and sold by them illegally marketed (to sell, not to buy) under 47 CFR 2.803. Rather, these devices may only be imported, advertised, sold, or used only if the FCC first has approved them under its equipment authorization process (or unless the devices operate exclusively on frequencies reserved for amateur licensees or they are intended for use exclusively by the federal government). That right there clearly states that these models can only be imported and sold IF they EITHER 1. have Part 90 certification already, OR 2. are sold for amateur radio use. The problem here is their wording since nowhere in the FCC code does it say that any model imported, sold or used by an amateur nor any retailer is required to ensure the model being sold is setup for EXCLUSIVE use on either Part 90 (commercial) or Part 97 (amateur).
The other bit the trolls are latching on to is Anyone importing, advertising or selling such non-compliant devices should stop immediately, and anyone owning such devices should not use them. Violators may be subject to substantial monetary penalties. They then point to various infractions by specific companies including Foscam/Amcrest for illegally importing and illegally selling models claimed to be Part 90, without the legal Part 90 certification (neither the authorization nor the certification under Foscam/Amcrest), and other models marketed as "walkie talkies" without any notification that these models can only be used by licensed amateurs. By comparison, the BaofengTech (aka BTECH) models have it plastered all over their websites, manuals, and sometimes the boxes that the specific model purchased can only be used for specific uses (aka amateur, or Part 90, or Part 95 MURS, or Part 95 GMRS). this is the difference between a legitimate 3rd party company and in my opinion a scam company.
LMCC
Next the FCC uses a false claim by the LMCC which is "over 1 million units imported and sold illegally every year", to say The Bureau has noted an increase in the manufacturing, importation, advertising, and sale of two-way VHF/UHF radios that are not authorized in accordance with the Commission’s rules. Now one key aspect to notice from this letter is they provide ZERO proof, ZERO references, ZERO credible basis for any of their claims, it is worded to invoke an emotional response instead of a sane rational basis with proven referenced facts. Provide the details as to where those 1 million are being sold, show the Amazon and ebay sales information for models listed as "Baofeng" to provide a factual basis for your claims. I can guarantee you that Amazon sells maybe 40-50,000 per year in the US, with maybe another 10-20,000 through ebay (and at least half of those are likely used). So where is the basis and proof for this 1 million claim?
Also, since when does commercial interests and opinions trump facts? Lets be honest, as of writing this (25 Sept 2018) there are 821,362 active amateur licenses in the FCC ULS database. With silent keys and people no longer on the air (not using their license in any manner but still having an active license in the database), the realistic (approximate) number of active amateurs with a US license is around half of that, so lets say 400,000. Under the commercial/Part 90 side, there are 561,371 active licenses. So add them together and every single one of the active amateurs AND active commercial licensees would have to buy 1 "Baofeng" each in order to get anywhere close to that claim of 1 million. Once you figure in that less than half of active amateurs have or would buy one, and the majority of Part 90 commercial people/groups would not be buying one or more $35 radios for their business, that absolutely kills their claim of 1 million annually. OK sure I can see global sales reaching 500-600,000 per year, but this 1 million claim is utterly and completely bogus. So to have the FCC reference them in their notice means this LMCC has some inappropriate sway over policies and rule of law, which is illegal as they have no legal vote for anyone as a company, therefore have no legal say over policies and procedures. They can make suggestions, they can make recommendations, but to make false claims with no evidence, no proof, which then affects the rules by the FCC, and affects businesses ability to conduct legal business via sale of devices that as majority have legal status of being sold and used commercially and personally, just leaves a very bitter taste in my mouth.
Lets look at the LMCC. They say on their website that The LMCC is a nonprofit association of organizations that represent the wireless communications interests of public safety, critical infrastructure, business, industrial, transportation, private and common carriers, and manufacturers of wireless communications equipment. Then on their member directory page it lists multiple companies that have direct and close ties to commercial radio manufacturers like Icom, Motorola, Kenwood, and more. To me it looks like they repeatedly file bogus claims every few months with the FCC in an attempt to try to kill their competition. They are losing 5-10% of their business (assumption) and they want to keep overcharging everyone for their overpriced crap that the majority would not buy even if they banned all these "imported" brands. People would continue buying them through any of the dozen or so websites, even if they somehow got Amazon and eBay to stop selling them (not likely).
They claim "Our issue is the widespread importation, distribution, and use of radio frequency devices that do not comply with FCC rules." Ok I agree on that point as worded, but it is a generic blanket statement used to invoke an emotional response from people, yet once again they make a claim without any facts or references to back it up. List references and details of WHO is importing the illegal models, WHO is distributing the illegal models, WHO is using the illegal models? The problem I have they are making a blanket claim against ALL imported (aka Chinese) models claiming or at minimum insinuating are being imported as illegal Part 90 devices. Instead the majority are being imported and sold as amateur radio devices, with a few sketchy retailers like FoSCAM/Amcrest illegally marketing and illegal sales of models that do not comply with Part 15 (spurious emissions affecting 96% of Foscam sold models), Part 90 (illegally using the Baofeng Part 90 certification without approval on unrelated/modified models) nor Part 97 (non-Part 90 certified models that are not limited to the narrower amateur radio bands).
back to the FCC notice
Anyways back to the FCC notice. Generally, electronic devices that intentionally emit radio waves are required to be certified by the FCC or an authorized third-party certification entity (Telecommunications Certification Body) prior to importation, advertising, sale, or use. Of course, the thing is these models sold for AMATEUR use only require Part 15 COMPLIANCE at minimum since Part 97 is by rule, by the licensee. Part 90 (and 95, and 80, and others) requires certification (in addition to Part 15 compliance). The LEGITIMATE models (official corporate models like the recently reviewed UV-5R EX, and legitimate 3rd party models like those from BTECH) sold for amateur radio use have the legal Part 15 compliance, and many also have the voluntary Part 15 certification. The legitimate models with legal Part 90 certification have nothing to worry about. Those companies that do have to worry are those illegally selling or using certification setup for models released by another company, like those sold by/from Foscam/Amcrest (such as the BF-F9 line, and most everything they sell). For example Baofeng has a Part 90 certification for their UV-5R line, but that only covers direct UV-5R models and related line sold by Baofeng corporate. Foscam/Amcrest using that Part 90 to attach it to their alternate model lines is illegal. The other aspect that most people do not realize is that Baofeng has their own Part 15 and Part 90 certifications, but then someone (aforementioned company) also used some potentially forged documents to file their own Part 15 and Part 90 certifications using other names as "representatives of Baofeng" to get a few of their models certified and compliant. Luckily someone saw right through that and they are now facing the beginning of a wide range of FCC actions against them.
At least the FCC makes a mention of the Amateur Radio exception, although they butcher their own rules in doing so. Instead of pointing to a rule, they use the opinion or claim if a device is capable of operating only on frequencies that the FCC has allocated for use by Amateur Radio Service licensees, it does not require FCC equipment authorization (their emphasis on ONLY). Yet they point to a ruling against another company laced with opinions ("Pilot Travel Centers" 19 FCC Rcd at 23114 which is a document almost impossible to find, because so many others reference it) which says (“[R]adio transmitting equipment that transmits solely on Amateur Radio Service (‘ARS’) frequencies is not subject to equipment authorization requirements prior to manufacture or marketing.”) (emphasis added)., not a FCC rule that dictates what is required (or not), and FCC rules/code does NOT require amateur radio units to ONLY be capable of transmitting on amateur radio frequencies since that is the requirement of the licensee to ensure they are within their licensed bands, not the transceiver itself. This is what allows licensed amateurs to use almost anything provided they are within their licensed bands and emission standards, they can use a Part 90 radio, they can use a modified Part 95 radio (which negates the Part 95 certification once modified), and what allows them to create and sell their own amateur radio equipment that can/may/does have the ability to transmit outside of amateur radio bands. This is why even the big 3 sell models that can and will transmit outside of the amateur bands. As I mentioned above, even Yaesu, Kendoowd, Icom and the rest that have various models on other bands allow for transmit and receive outside of amateur bands (15m is usually 21.0-21.5 even though licensed band is 21.0-21.450, 20m is usually 14.0-14.4 or 14.5 even though it is 14.0-14.350, and for UHF models like 33cm they usually have access to 900-930 or beyond when that band is 902-928MHz). they continue on to again falsely claim that If a two-way VHF/UHF radio is capable of operating outside of the amateur frequency bands, it cannot be imported, advertised, sold, or operated within the United States without an FCC equipment certification. The majority of the legitimate Baofeng models do carry the Part 15 certification which is all that is required of a model sold for amateur radio use AND has the capability to transmit outside of amateur radio frequencies. Again, the sticking point is many of the fraudulent retailers/sellers are marketing them only as "walkie talkies" or "handheld radios" without any mention of the requirement "for amateur radio use only". The sellers are required to have that clearly disclosed, and the company importing must also have a similar statement with that model or model line. So that is an enforcement of policy that the FCC needs to levy against those specific sellers that do not mention it, not have a blanket "ban all Baofengs" type of mentality they're portraying.
The official models manufactured by Baofeng corporate were primarily sold under the Part 15 certification (in addition to compliance) with the ZP5BF FCC ID code. Some of the Part 90 approvals were also listed under this same prefix. The problem is models that illegally used that Part 15 compliance or even worse Part 90 certification applied to their illegally created models which were not manufactured by, sold by/from, imported from, nor sold by any Baofeng corporate, nor approved company (like Foscam/Amcrest and others not legally allowed to make their own models nor use corporate's certification for their alternate line/model). Many of the official approved sellers and 3rd party companies filed for and have their own FCC IDs, such as BTECH with their 2AGND approvals.
One major thing that they need to really watch for is not affecting legal sellers like BTECH, and go after those selling the illegal models or have the illegal sales/listings with no mention of the amateur radio or Part 90 commercial usage requirement. Unfortunately with the blanket statements by the FCC and others stomping their feet, if they get their way, every single seller/retailer that imports or sells Baofeng, TYT, QYT, or any of these other models will have their businesses seriously affected since they will be caught under the wide ranging net with no regard to their actual legal model status, even if they have legal FCC filings and certification for their models. I see this as a temper tantrum by the major radio manufacturers not happy that they are losing 5-10% of their business, instead of realizing the reason they're losing business is they continue to do things "as they have always been", which is overpriced mediocre equipment needing repairs once a year, that offers no incentive to the end user. Why spend $150-200 for something that can be had for $35? For some it is nothing more than a status symbol, no different from someone showing off to his buddies in public in a high end GT-R instead of their daily driver Hyundai.
There needs to be caution on who they go after, if they go after enough of the legitimate sellers/retailers, they may have a class action lawsuit against the FCC and others like that LMCC for making false claims (1 million per year? really?) and illegally targeting sellers of legal products. In the end the FCC needs to stick with the code/rules on file and enforce them, not opinion rulings based on a specific case against a specific company that broke specific rules that may not apply here. All I see is "This one company sold illegal Chinese CB radios so we need to go after all companies that sell Chinese radios!!!". Sorry you look like a (big corporate) child throwing a temper tantrum, lets hope their enforcement officers do not act the same way.
Take care and 73s!
Mike
K4ISR