[tripletao]

You are failing to distinguish between the law as it's written and the law as it's currently enforced, and inventing a quasi-legal framework with no relationship to actual American law to justify your conflation. It's true that judges will sometimes consider legislative intent when the text is unclear; but in this case, the text is perfectly clear, so that's not relevant.

Large companies, small companies that want to get bought by large companies, and other conservative entities generally aim to comply with the law as written, even though there's lots beyond that you can probably get away with. Everyone should judge for themselves how far they want to push from clearly legal actions to grey to clearly illegal but unenforced; but they should know which one they're doing, and your advice isn't helping.

If we submitted a KDB inquiry asking the FCC whether the board in question required certification, what do you think they'd say? (It's free, and you typically get a quite competent response within a few days. If anyone wants to try, please use a generic description, and not a link to the particular product. I doubt the FCC would waste their time enforcing, but the chance isn't zero and the developers don't need that attention.) Or why do you think the Pi developers got certs?

[R0b0t1]

The words on paper are only a lens which you view what was originally intended. I'm not doing anything abnormal, and judges always consider legislative intent. We are not ruled by the particulars of language.

I generally aim to comply with the law as much as possible as well, but the people in this post (including yourself) seem to have no idea of the true cost of complying with the interpretation of the FCC rules you are putting forth.

Yes, if you ask the FCC whether it requires certification they would probably say yes, mainly because they do not want to undermine their authority. This is something I've dealt with quite a bit with pretty much any regulatory body; they pick the most restrictive and burdensome interpretation regardless of what common sense or existing or future court cases eventually say.

[tripletao]

I currently work for a large company with a strict compliance team, so I'm well aware of the cost. We pay it, and it's both (a) quite a lot of money, and (b) an utterly insignificant fraction of our overall development budgets. I believe most major tech companies or well-funded startups do the same.

In the past, I've done other stuff less strictly (though again, certified modules--which you didn't seem to be aware of--are the quick, easy and compliant answer for many low-volume products). I was under no illusions that anything but the FCC's enforcement discretion was protecting me, though. Your concept of the law is simply wrong, wishful thinking. It seems there's nothing I can write that would convince you of this; but please discuss with a lawyer or other qualified person that you trust, before you or someone you're advising gets in to serious trouble.

Your viewpoint is particularly dangerous because if you look through the FCC's formal enforcement history, you'll see occasional massive fines, but only after the noncompliant entity ignored multiple attempts to resolve the matter informally. Anyone who acknowledges and corrects their noncompliance after the first threatening letter probably gets a slap on the wrist at worst; but someone who persists under the belief that a judge would let them disregard the text of the law to save $10k will (a) incur much greater legal costs regardless of whether they win or lose, and then (b) near-certainly lose.

You could say this system gives too much weight to the regulator's own interpretation of its rules. I wouldn't disagree; but it's how most regulation works, and the regulated ignore it at their peril.

[R0b0t1]

>I believe most major tech companies or well-funded startups do the same.

That's nice. Are those the only types of businesses who can enter the market? I'm also aware of modules, but using them is not free.

Your concept of the law is more wrong, and this I offer as proof: Language is imprecise and limited. It is more likely that the text of the law fails to track the intent of the law than otherwise.

Throughout this I have never said I would disregard a notice that a product I had made was emitting or otherwise faulty, and indeed I believe that is the first check on most low volume products that are sold "without certification."

To behave otherwise, and allow the prior limiting of otherwise benign and nondisruptive behavior, is to give in to petty tyranny and against the founding ethos of the United States.

[tripletao]

My concept of the law is based on the advice of many expensive lawyers, who are paid based on their ability to predict (a) what might cause the regulator to take action against us, because that would probably cost hundreds of thousands of dollars win or lose; and, to a lesser but still significant extent, (b) what the judge would rule in that case. Yours appears to be based entirely on your own wishful thinking, and you haven't once cited any authority beyond yourself. If judges routinely disregard the unambiguous and constitutional (and not otherwise preempted by other written law) text of the law, then you should be able to produce case law where that happened. Why haven't you?

Seriously, this is like arguing with a sovereign citizen. The law isn't just some abstract philosophical ideal. The law is the set of rules that determine how the government exercises its hard power, including the power to block import of your product, seize money from your bank account, or, ultimately, send police to arrest you, with any necessary violence if you resist. EMC regulations tend to stay pretty far on the polite side of that spectrum; but the result when people with a delusional concept of law meet actual government power still typically isn't good.

Can you give an example of evidence that would convince you that your concept of the law is wrong? As I said above, you could show me case law where the text of the law was unambiguous and not preempted by other written law, but the judge disregarded it anyways. What could I show you?

ETA: And you moved the goalposts when you said you wouldn't disregard "a notice [from the FCC] that a product I had made was emitting or otherwise faulty". An uncertified intentional radiator is noncompliant, regardless of whether it conforms to the technical limits. The FCC is under no obligation to confirm anything beyond the lack of certification before ordering the product off the market. We're talking about the requirement for certification, not the requirement to meet the technical limits (which the certification confirms; but meeting the technical limits absolutely is not a defense to lacking certification).

So if the FCC just said "your product is uncertified, stop selling it", would you comply? If no, then I think you know bad things would follow. But if yes, then why? You seem to believe (contrary to the guidance you expect from the FCC, and contrary to the text of the law) that no certification is required, right?

[R0b0t1]

Many lawyers are extremely conservative in their judgement. Sometimes this is appropriate, but for the type of lawyer most people can access this stems more from their clients being unable to pay for their litigation services if they do something spicy and need a lawyer to defend them. So a very bad but usually unlikely outcome ends up with enough expected value to consider for most people, because most people are risk averse by default.

See this in yourself as your second paragraph details all the ways the government is scary. Yes, I already know.

I can't think of an example because I know my concept of the law is not wrong. Do not mistake my philosophical groundings of what and why the law is for what I believe the law to actually be. I offered that explanation to you in an attempt to explain why I think what I do and why it is reasonable while also referencing particulars.

What we are discussing is particulars, and if you want to show me that selling low volumes of a product without certification is dangerous then probably I'd need a few examples of that happening, and multiple justices saying "every business, regardless of how big, small, or their product, must spend tens of thousands in red tape."

I did not move the goalposts by saying I wouldn't disregard reasonable notice. You assumed I would not without asking my input and I corrected you.

It depends on what my product is. If it was a low volume prototype I was selling to evaluators before certifying in detail I'd probably say "no, it is certified, it is test and measurement equipment" and then let the company fold in bankruptcy if taken to court. Eventually it may be found the actions of the FCC were unlawful and I might be compensated. If I was intent on immediately continuing to sell it I would move production outside the US and put it on a web store.

Keep in mind you've unfairly characterized what I believe by assuming things in multiple places. I am not a sovereign citizen, and I mostly agree the FCC certification process is appropriate and on the edge of being accessible, but how most people interpret it at the lower edge is not correct.

[tripletao]

In business, the law is how the judge will rule, or how the regulator will regulate, or any of the other actions with practical effect on your ability to develop and sell your product. It's fine to have your own philosophy for how the world should be organized, and to advocate for it where you can; but unless and until you convince a regulator, judge, or lawmaker with that advocacy, your philosophy has no bearing on the actual practice of law.

So when you write:

> If it was a low volume prototype I was selling to evaluators before certifying in detail I'd probably say "no, it is certified, it is test and measurement equipment" and then let the company fold in bankruptcy if taken to court. Eventually it may be found the actions of the FCC were unlawful and I might be compensated.

you have broken from reality. Any lawyer you engaged to defend you would explain that you have a losing argument, and that it would be far cheaper to comply than to pay their fees and then lose. Without a lawyer defending you, your odds would be yet worse. If you won, then you'd be lucky to get even a fraction of your legal fees awarded, let alone the lost profits. In every practical sense, you'd be worse off than if you recognized that while the requirement for certification isn't typically enforced, that's nonetheless the law, and that your best action would therefore be to apologize (with a lawyer's help, to avoid admitting any unnecessary guilt) and become compliant.

I'm not saying any of this is good! Enforcement discretion is basically bad, a transfer of power from legislators to enforcers. I'd prefer a system where something like the § 15.23 exemption applied to low-volume commercial products too, since that's what we de facto have and it works fine. But that's not the law now, and wishing doesn't make it so.

You're quite correct that lawyers give conservative advice because they know the cost of conservative compliance is generally lower than the cost of litigation even if you win. The lawyers that I work with sometimes find my tendency to read the regulations to be charmingly naive, because they prefer to simply ask the regulators--in part they're just a bit lazy, but they're also quite aware of the cost (both in legal fees and in friendliness of relationship) to take any conflicting position. I'm again not saying this is good, but it's the system we have.

Finally, if you did want to argue this, I believe you'd be better off saying it's an "evaluation kit" under 47 CFR § 2.803, not "test equipment":

https://www.law.cornell.edu/cfr/text/47/2.803

Per my original comment, I'm not convinced that's a winning argument for this board; but I believe it would be for typical dev boards (that really are used primarily by people evaluating a part for use in a different system, and not as general-purpose single-board computers), and it's at least not a frivolous argument. Note that compliance with the "evaluation kit" rules requires some magic language in the user manual--if you're selling anything that could plausibly fall under those rules, probably a good idea to include that. Note also that you can let customers evaluate unauthorized prototypes as long as you mark them accordingly and don't collect money for the evaluation, and that you can sign a sales contract (but not complete the sale) pre-authorization as long as it's contingent on authorization.