[NCLUG] Fort Collins OpenMoko Group Order

[John L. Bass]

More importantly:

    http://wiki.openmoko.org/wiki/Shipping_Notes#United_States_of_America

    "They also claim that we may need to file an FDA 2877 form for the 
"Declaration of Electronic products subject to Radiation Control 
Standards". I'm personally don't think this would apply since we're 
using a common GSM module."

    "It is my understanding that even if the form does need to be filed 
the device is an exempt item under part A6 if it is marked "FOR TEST / 
EVALUATION ONLY" and ownership is not passed on to anyone after the 
initial import."

IANAL ... or FCC regulatory expert, but after 39 years in this industry 
.... my understanding is ...

Under U.S. FCC regulations no RF device may be marketed or sold until 
FCC Certification is complete, except for certain devices for 
construction of HAM gear. Fines for advertising or selling devices 
without FCC Certification are $10,000 per unit per day up to something 
around $150,000 (amounts differ for personal and business uses). There 
are also criminal charges possible when the violations are willful, 
along with asset seizure.

Without the phones being certified, and being properly affixed with the 
FCC-ID of the agent importing/reselling them, any advertising, use or 
resale of these devices appears in direct violation of the FCC 
certification rules.

The only exceptions I am aware of to this rule, are hobby and 
prototypes, such that an entity may build and test up to 5 prototype 
devices during the development process, which may not be demonstrated to 
the public or used for any advertising or sales efforts without required 
FCC filings. At trade shows, firms I've worked for have had to expressly 
file with the FCC prior to the show to demonstrate preproduction 
products which have not recieved prior Certification and FCC approval to 
ship. Under this rule, an entity may purchase subassemblies for their 
prototype product, such as a complete electronics module, to which they 
will add value added prior to certification and sale. Everyday personal 
use without intent to certify is not exempted by this prototype 
provision, as is a hobbiests purchase of complete assemblies for 
personal use, and any interference caused is subject to sanction by the 
FCC. Hobbiests have a lot more freedom when they actually design, and 
fabricate the subassemblies themselves ... rather than simply be 
consumers of a market ready product and try to hide behind the 
subassembly evaluation rules. You will find a fair number of uncertified 
"prototype" electronics modules in the market for hobbiests, that if the 
same module were to be sold as a finished product would require proper 
certification, or at least conformance testing for use inside a type 
approved product.

Many devices, like WiFi modems, phones, etc, may have FCC mandated 
software limitations as part of the approval process to prevent the 
public from altering the operation of the device so that it will operate 
outside it's certified and FCC approved channels or bands. Generic 
subassemblies restricted "FOR TEST/EVALUATION" frequently do not have 
these firmware and binary only driver limitations, and are specifically 
not available for resale to the public. Devices of this class MUST have 
FCC certfication for each entity importing the generic electronics for 
their software, such that the binary only firmware/software provides the 
required restrictions subject to FCC approval. Certification by Vendor 
A, does not allow Vendors B, C, ... Z to sell the product without 
certification for their firmware/software. Again, members of the general 
public importing these non-certified devices for personal use are in 
direct violation of the FCC regulations, especially if they produce 
interference for a certified device/network .... IE, there is a software 
bug which brings down a Cell Carriers network, at which point you may be 
subject to legal sanction by both the FCC and Carrier for the losses 
caused by illegal operation of these devices.

Unless you have a clear business plan to develop these phones for 
resale, with all certification, their use appears illegal until such a 
time the manufacturer obtains an FCC-ID for them. Any importing these 
devices without certification for personal use, or for any resale, 
appears a direct violation of FCC regulations and US law.

A bulk purchase appears resale, as one person writes the check, accepts 
delivery, and resells them. Advance sale of the non-certified devices 
for a group order appears to be specifically advertising AND sale, both 
of which are prohibited for non-certified devices subject to FCC regulation.

Again, IANAL or FCC regulatory expert, but I strongly suggest contacting 
your legal counsel before importing these devices without an FCC-ID 
attached. The person directly organizing the group buy is highly at 
risk, as is each individual promoting the buy, and each individual 
participating in the buy and using the product afterward. Ignorance 
doesn't protect you from these regulations and fines.

Have Fun!
John


Scott Scriven wrote:
> * Jim Hutchinson <jim at ubuntu-rocks.org> wrote:
>   
>> I've been waiting for an open phone. My understanding is that these are dev
>> tools rather than working phones. Can anyone add any insight? Could we, for
>> example, pop in a sim card and use them with any carrier?
>>     
>
> This has some details:
>
>   http://wiki.openmoko.org/wiki/Snapshot_review/2008-05-07
>
> It's over a month old, but it should at least give you some idea 
> about the project state.
>
>
> -- Scott
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