FCC Denies Expert Linears’ Request for Waiver of 15 dB Rule, Petition Pending

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http://www.arrl.org/news/view/fcc-denies-expert-linears-request-for-waiver-of-15-db-rule-petition-pending
I guess I just dont understand why Flex would be against this? Something to do with the new amplifier?

Really, I dont understand.

73
Kent
NC6B
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Kent Olsen

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Posted 2 years ago

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KY6LA - Howard, Elmer

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Pretty obviously to keep the competition in check until Flex releases their Amp.
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k3Tim

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This seems to be putting the cart before the horse. If I read this correctly, Expert has a request for rule change that will be determined in April. In the mean time they've requested a waiver to the current rule. This would seem to imply they expect the rule to be amended per their original filing.
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Peter K1PGV, Elmer

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Flex didn't oppose Expert Linears petition. In fact, they supported it.

https://ecfsapi.fcc.gov/file/60002090...

It always pays to go to the source. Especial when it's on line and searching it takes less than a minute.

Peter
K1PGV
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Kevin

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Ah... more fake news. Thanks for setting the record straight. This makes a lot more sense.
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k3Tim

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The original proposal for rule making by Expert Linear America (herein referred to as ELA) is still in process (RM-11767).

Whilst awaiting action ELA filed a waiver request for the 15db rule (aka. §97.317(a)(2)), effectively jumping the gun:

https://ecfsapi.fcc.gov/file/60002112699.pdf

ELA responded to comments about the aforementioned waiver and can be examined here:

https://ecfsapi.fcc.gov/file/109131505615016/ExpertWaiverWTB16-243ReplyComments.docx


The above research is readily recreated by the interested stugent  from a search of FCC site: "Search for Filings"

https://www.fcc.gov/ecfs/

with name of file:

Expert Linears

---
Regards All,
k3Tim
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Peter K1PGV, Elmer

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Ah! Now all is clear. Good job on the research, and explaining the situation, K3TIM. In fact, much more cl ar than the article by the ARRL. I should have done a more thorough job of my OWN research. Thanks!

Peter
K1PGV
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Gary L. Robinson

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It is obvious to me why the F.C.C. denied the petition with their answer. It makes no sense whatever to the F.C.C. why they should NOT complete the process that is in motion now. It would make a mockery of their whole rule making process and it is not a foregone conclusion what their ruling will be.
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Gerald - K5SDR, Employee

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Official Response
I received an email today from a ham who misunderstood our position.  After he read my response an the public information, he was in complete agreement with our position.  Please share this with anyone who is misinformed.

Here is my email sent to him earlier today:
We DO NOT want them to maintain the 15 dB rule, which is completely antiquated and unnecessary.  Our new PowerGenius XL amplifier design already supports the ability to amplify milliwatts to kilowatts internally so it is not a technology issue for us. We have to attenuate the signal on the input of the amplifier in order to reduce 50W down to milliwatts to stay within the current rules just the same as the petitioner does.

FlexRadio 100% supports the original FCC request for comment to change the rules permanently for ALL manufactures of amplifiers - not just one. That would provide a level playing field for everyone making an amplifier in today's market.  

The following is from the FCC Order with my emphasis added:

"The other, FlexRadio Systems (FlexRadio), supports the proposed rule change but argues that granting Expert’s waiver request while the rulemaking remains pending would unfairly advantage one manufacturer over others and be contrary to the public interest."

We would like the 15 dB rule lifted for our products and our competitors products at the same time. Otherwise every manufacturer has to individually go through the waiver process.  

Isn't that fair and reasonable? 
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Kevin

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Is your amplifier not ready for market? If it were and waivers were possible wouldn't you want to get your amplifier into the public's hands as soon as possible while waiting for the (hopefully) inevitable final ruling? If your competitor wasn't ready would you be fair and wait for him to catch up?

I understand that having the waiver denied prevents a competitor from getting a product out on the street before your product but not sure that it is done in the public interest and not sure the other manufacturer was doing anything unfair.

Not being a businessman I'm probably just missing the whole point.

73,
Kev
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Steve - N5AC, VP Engineering / CTO

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Official Response
I'd like to rewind a bit here and make sure everyone understands what happened:

1. First, Expert Linears filed a Petition for Rulemaking on April 7, 2016 which was assigned RM-11767 by the FCC.  This petition sought to remove the 15dB gain limit on HF amplifiers.  
2. FlexRadio filed support for this petition on June 1, 2016.  All good so far!
3. While I can't specifically comment on why, Expert apparently did not want to wait for the NPRM and filed a request for waiver of the rules and was assigned WT Docket number 16-243.  The process and explanations for why you would file a waiver can be found here.  Note that in order to request a waiver, you must meet this legal hurdle (verbatim from 47 CFR § 1.925 (b)(3)): 

The Commission may grant a request for waiver if it is shown that:

(i) The underlying purpose of the rule(s) would not be served or would be frustrated by application to the instant case, and that a grant of the requested waiver would be in the public interest; or 

(ii) In view of unique or unusual factual circumstances of the instant case, application of the rule(s) would be inequitable, unduly burdensome or contrary to the public interest, or the applicant has no reasonable alternative.

Because Expert Linears are already selling their amplifiers, modified, in the USA, along with every other manufacturer, there is nothing inequitable, burdensome, etc. about the rules.  ALL amplifier manufacturers are following the rules in unison today.  The applicant not only had a reasonable alternative to requesting a waiver, they were currently exercising it (limiting the gain).  Just like everyone else.

4. The FCC requested public comments to this waiver on July 29, 2016 with a cut-off date of September 13, 2016
5. FlexRadio does not support one manufacturer (Expert) having an advantage over all other manufacturers including Icom, Yaesu, OM Power, Elecraft, FlexRadio Systems, etc.  We filed comments in opposition to the waiver on August 1st.  I was frankly a little miffed to have to spend time writing comments in opposition to something that I think a manufacturer shouldn't file in the first place -- a request for an personal waiver to the rules that everyone else is following, but would like removed, after already requesting this in a Request for Rulemaking.  I do, however, commend Expert Linears for taking the time, energy and funding to request the Rulemaking in the first place.
6. After FlexRadio filed comments, Expert doubled-down in new comments on August 26, 2016, stating again that an immediate waiver of the rules should be granted to Expert
7. The FCC reached an independent decision on December 23, 2016, relying in part on comments from all concerned, and the decision aligned with FlexRadio's position.  In short, the waiver was denied.

RM-11767 is still before the FCC and will be ruled on in due time.

Again, FlexRadio System's official position is that we support removal of the 15dB limit.  But it should be removed for all manufacturers in due course of the FCC's normal business (as was stated in our comments to the waiver).

I encourage all of you that would like to understand how the FCC does business to read the well-considered decision from the FCC as well as all of the petitions and comments referenced in this note chronicling the process.
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HCampbell WB4IVF

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Thanks for the explanations Gerald and Steve!  I have one question:  If the FCC does approve RM-11767, but approval comes too late for the initial PowerGenius shipments, are there any plans to enable the purchasers of those units to have their amps retrofitted? 

Thanks,

Howard

(Edited)
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Jay / NO5J

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It might mean, more Software Defined Watts, after an upgrade download.

  SDRgadgets

#FlexRadio IRC chat

  73, Jay - NO5J

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Ross - K9COX

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Watt difference does it make
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HCampbell WB4IVF

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Yup, mho watts are the difference.  (-:

Was just wondering what happens if/when  RM-11767 is approved – how will the ongoing Flex certification be affected by the removal of the 15 db limit?  Will PowerGenius have to be submitted for another possibly lengthy re-certification under the new rules, or will the original (currently ongoing) certification suffice?  If any Flex amps conforming to the current 15db limit were sold before RM-11767 approval, can they be updated with a firmware update or would they have to be sent back to factory for update?   Etc.

Howard

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Ned K1NJ

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     Since the approval will come "in due time" (undefined), I'd rather have an
amp. sooner rather than later.  It sounds like it may be user configurable.

                 Ned,  K1NJ
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Paul Christensen, W9AC, Elmer

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> "3. While I can't specifically comment on why, Expert apparently did not want to wait for the NPRM and filed a request for waiver of the rules and was assigned WT Docket number 16-243.  The process and explanations for why you would file a waiver can be found here.  Note that in order to request a waiver, you must meet this legal hurdle (verbatim from 47 CFR § 1.925 (b)(3))..." 

It's more than just the jumping through the 1.925(b)(3) hurdle: Expert has retained experienced telecom legal counsel on matters pertaining to their petition and waiver request but I'm surprised they didn't anticipate the legal conundrum the waiver created, having been filed so shortly after the petition.  Specifically, if the Commission ultimately denies the petition after full consideration, why would they want to see a short-term proliferation of high-gain amps in the U.S. marketplace that results from a waiver grant, only to reverse course on the identical issue with a denial of the petition? 

The FCC ruled correctly in this instance.  The Commission staff would be fools to grant a waiver, followed shortly thereafter with a possible denial of the petition after full consideration. 

Trying to stay balanced here, Flex has no standing on the issue since it would not be financially disadvantaged if the grant was approved - for it has no amplifier product in the current U.S. market and according to the Flex website, certification of the PowerGenius XL is not yet complete.  Regardless, that fact doesn't diminish the Commission's concern -- and this concern should have been foreseeable to Expert's counsel prior to filing the waiver request. 

Paul, W9AC    
(Edited)
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Steve - N5AC, VP Engineering / CTO

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I felt this way too. I really think counsel's responsibility includes putting their client in the best light and preventing them from appearing foolhardy. I feel like the conversation likely went: "Is there anything else we can do?" And the answer: "Well you could file a request for waiver of the rules. The worst they can do is say no and you're likely to get lots of community support." But the FCC would just generate its own anguish by granting the waiver (and this should have been foreseen by counsel and the appropriate advice dispensed). The move also felt disrespectful -- in effect saying "We both know you'll rule in favor of RM-11767, but because that's taking a while, please spend some more of your time to help me around this in the short term." It seems to be a waste on all fronts except legal fees for counsel.
(Edited)
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Peter K1PGV, Elmer

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This.

The best outcome for ELA was the FCC giving them their waiver, thus unleashing a torrent of "me too" waiver requests to the FCC from other vendors. Can't see the Commission wanting that. So that wasn't going to happen.

The other outcome was the waiver request gets denied and ELA waits like everyone else for the Commision to rule.

Ignoring the matter at issue, it wasn't hard to anticipate what the outcome would be.

So...it seems to ME kinda pointless to request the waiver. Just wait patiently. But... who knows what the motivation was.

Peter
K1PGV
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Ken - NM9P, Elmer

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Agreed, Paul. It makes no sense for Expert to file a waiver shortly after filing the Petition for Rulemaking, unless they were pretty certain that the NPRM would be approved and they we're trying to get a leg up in everyone else. ( I think that is called a "false start" or "illegal procedure" in the NFL.). I don't blame them for trying, but they got flagged on the play.

My only difference with your statement may be about "standing." Since they have a product in the process of Certification and Type Acceptance wouldn't that be affected by the NRPM and Waiver, giving FRS some element of "standing?" (It seems logical to me, but perhaps this legal term is more restricted than my layman's understanding of the law includes...)

In any case, Gerald, Steve, and Paul have summed up the issue very well, and I think FRS's response was correct.
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Paul Christensen, W9AC, Elmer

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Steve,

I often have potential clients (and money) walking though the door who want to file a case regardless of the merits.  Possibly Expert's counsel advised them of the risks and decided to proceed anyway. 

I'm with you on the time and expense concerns.  It takes little to file a petition, motion, or waiver, and yet it consumes tremendous Commission resources and for those affected by the filings.  It's almost become too easy to file.  

Apart from small claims courts, it's much more difficult to file pleadings in civil cases.  Pro Se representation requires a complete knowledge of the rules of civil procedure.  Those rules are designed to streamline the filing and response processes, but they're also in place to minimize the number of filed cases from the general public.  If it were easy to file, we would probably have 10x the number of pending cases in state and federal courts and few of them would pass a prima facie test!

Paul, W9AC 
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Ken - NM9P, Elmer

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Paul, kind of like "Filing this motion is a dumb, expensive idea. But if you insist, and want to pay me to do it, I could use another vacation or piece of radio equipment...". Ha.