The FCC has backpedaled on everything in this article, please go here and read the new article: https://medium.com/@lucky225/fcc-back-peddles-all-transceivers-capable-of-transmitting-on-frequencies-that-require-40377a3722c5
Did the FCC just make Baofengs illegal?
On Monday, September 24th, 2018 the FCC issued Public Notice DA 18–980, Enforcement Advisory № 2018–03 that sent the Amateur Radio community into a frenzy across several Facebook groups. Hackaday went as far as to tell people to buy Baofengs while you still can. So did the FCC just make Baofengs illegal in the United States? Not quite.
The notice advises that the import, sale and marketing of 2-way radios that are capable of operating outside the band they are certificated for is illegal. For example there are some Baofengs that are part 90 certified, and it’s true that some of the UV-5R series were certificated for part 90 but sold and advertised in the US as operating on frequencies outside of part 90, and the FCC cited an importer for illegally marketing this device. However many other Baofengs are Part 90 certificated and do not by default allow you to select frequencies outside of the Part 90 bands.
While it’s true many of the Baofengs are wide open on any frequency in the 136–174Mhz and 400–520Mhz range, and it is illegal to import, market and sell these devices, it is not illegal to own or operate these devices if you are a licensed Amateur radio operator and you are operating only on amateur radio frequencies. It is only illegal to operate these “illegal” devices outside of the amateur bands, or on the amateur bands if you do not have an amateur license. [Edit: An earlier version of this story incorrectly provided only part 90 frequency ranges in the first sentence of this paragraph.]
To further clarify these points below are some screenshots of email correspondence between Noji Ratzlaff (KN0JI) and the FCC.
I wanted to get further clarification though. So I sent the following email to the FCC:
Letter of Inquiry
To whom it may concern at the FCC:
Recently you released a Public Notice, DA 18–980 regarding the importing, advertising or offering for sale two-way VHF/UHF radios that do not comply with the Commission’s rules. In this notice it was strongly implied that the operation of these non-compliant radios was not allowed under the Commission’s rules.
Specifically the notice makes the following claims:
These radios must be authorized by the FCC prior to being imported, advertised, sold, or operated in the United States. (emphasis added)…
unless the devices operate exclusively on frequencies reserved for amateur licensees
…
Amateur Radio Exception. There is one exception to this certification requirement: 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,8 and an amateur licensee may use his or her license to operate such radios.
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.(emphasis added)
The Bureau will take very seriously any reports of failures of two-way radio operators to comply with all relevant rules and requirements when using devices in the amateur bands. (emphasis added)
Prior to purchase or operation, individuals should ensure that a device is either labeled as FCC-compliant or operates solely within amateur frequencies.(emphasis added)
Your notice strongly implies that if a radio is simply capable of operating outside the amateur radio service that a license amateur radio operator may not operate such a device on the amateur radio bands, regardless of the fact that there is no equipment certification for amateur radio or the fact that the radio is not being operated by the operator outside of the amateur radio service bands.
The purpose of this inquiry is to clarify the intention of the meaning of the words used in your letter. It is commonly known that a radio that does not have an equipment certification for the band it is operating on can not be operated within that band, for example the radios referenced in footnote 9 of your notice are capable of operating within the GMRS and MURS bands, as those radios are not Part 95 certificated they can not be used on those part 95 bands. However there is no rule that I could find that would prohibit someone who already owns one of these radios from operating on the amateur radio service with these radios, unless the radio does not comply with some other part 97 rule (such as 97.101, 97.121 or 97.307), assuming the radio complies with part 97 rules, regardless of the fact that it is CAPABLE of operating outside the amateur radio service and thus does not comply with part 95 and other Commission rules, can it be operated on the amateur radio service?
Thank you,
Lucky225
WA6VPS
I received the following response from Laura Smith, whom I believe is currently Special Counsel for the Enforcement Bureau of the FCC.
I tried telephoning her, but as I’m on Mountain time it was already 4:20 PM Eastern when I called and reached her voicemail and left a message. I followed up with an email to her after leaving a voicemail:
Laura,
Thanks for taking the time to email me back, I did try reaching out to you (and left a voicemail), but I suspect you’re probably on east coast time and may have left already for the day. I have some very simple questions outlined in my email below. Scot Stone had previously corresponded with another amateur radio operator with:
Those devices do not have Part 95 equipment certification, so they are not authorized for use in FRS or GMRS, i.e. they are not “capable of operating under his subpart.” [sic] They can be used by amateurs, but only on amateur frequencies.
That amateur operator, Noji Ratzlaff (KN0JI), then followed up when Public Notice DA 18–980 was released asking if that notice changed anything about this previous email.
Scot responded:
No. The UV-5R and UV-82 are both certified under part 90. They can be used with a Part 90 license. In addition, they can be used on amateur frequencies, for which no certification is required. They cannot legally be used on Part 95 frequencies.
— -
The above from Scot is my interpretation as well, with maybe the addition that the UV-5R and UV-82, if capable of operating outside their part 90 certification would be illegal to sell, market, advertise or operate (*outside of amateur radio bands by a licensed amateur*).
To be clear, while it may be illegal to import, sell, market or advertise such a device discussed in the Public Notice, it is not illegal for an end user to purchase or possess such a device, and someone who does possess such a device would not be operating it illegally if they are a licensed amateur radio operator and operating on licensed amateur bands assuming the device does not violate some other part 97 rule, is that correct?
Thank you,
Lucky225
WA6VPS
In response I received the following email:
So there you have it, while it may be illegal to import, sell, market or advertise such a device (i.e. a Baofeng that is “free banded”) discussed in the Public Notice, it is not illegal for an end user to purchase or possess such a device, and someone who does possess such a device would not be operating it illegally if they are a licensed amateur radio operator and operating on licensed amateur bands assuming the device does not violate some other part 97 rule (For example there are claims that it does emit spurious emissions, which is a completely different issue, but if true, would make it illegal to operate a Baofeng on ham bands, albeit for a completely different reason.)
