Telecom Terminal Equipment: A Comparison of EU and U.S. Regulatory Frameworks

Barry Cartman

Suppliers to both markets will find that, despite recent revisions to remove technical requirements, barriers to market access remain, with U.S. procedural rules being more difficult.

Regulations concerning the approval of telecommunications terminal equipment (TTE) have undergone substantial revision in both the European Union (EU) and the United States in recent years. In addition, the two regions have sought to facilitate trade in TTE between them through a mutual recognition agreement (MRA). The MRA recognizes the competence of the regulatory authorities of one region, including designated test and certification bodies, to undertake the conformity assessment actions specified in the legislation of the other.1

The key EU legislation is the Radio and Telecommunications Terminal Equipment (R&TTE) Directive (1999/5/EC). In the United States it is Part 68 of CFR Title 47.2,3 Their revisions in both cases have been intended to remove technical requirements whose objectives were thought to be addressed adequately by market forces and also to introduce wider acceptance of the supplier's declaration of conformity as an alternative to, or even a substitute for, third-party test or certification.

Ideally, the changes should not only simplify market access but also lead to some measure of convergence between European and U.S. requirements. This article compares the principles behind the two regimes and examines implications for suppliers trying to serve both markets.

Scope of Equipment Covered

Both the R&TTE Directive and Part 68 address other issues in addition to TTE. For example, the directive encompasses radio equipment, and Part 68 includes premises wiring. These differences in the scope of equipment covered are not the subject of this article, however, which focuses specifically on the regulatory framework for TTE.

Table I. Definitions concerning TTE.

The basic definitions of TTE are given in Table I. Part 68 goes on to elaborate, in Section 100, that the rules relate to direct connection to the public switched telephone network (PSTN), including private-line services. This defines the area of commonality for which the comparative analysis presented in this article is valid.

It also identifies the first important difference. The TTE definition in the R&TTE Directive is more open-ended and includes any kind of terminal that is connected by any means to any kind of public network.

Technical Requirements

The R&TTE Directive is one of a number of so-called new-approach directives constructed to separate detailed technical standards from the regulatory statement of requirements. The regulation embodied by the directive is limited to a broad statement of essential requirements that must be met by all products (see Table II). This is in contrast with earlier national regulations in Europe that set out detailed technical performance parameters.

Table II. Technical Requirements--Directive 1999/5/EC, Article 3.

Part 68 resides somewhere between the older European national approach and the directive's less-detailed statement of principles (see Table III). In 68.7, the regulation adopts a high-level approach similar to that of the R&TTE Directive, requiring TTE to "not cause harm" to the PSTN and defining the meaning of harm.

Table III. Technical Requirements--47 CFR Chapter 1 Part 68.

With the exception of (i) in 68.3, there is an obvious correspondence between the Part 68 requirements and essential requirements 3.3(b) and (d) of the directive. Definition (i) corresponds to one aspect of essential requirement 3.1(a). To this extent, there is a good fit; however, on the face of it, the R&TTE Directive includes a number of other requirements absent from Part 68.

This discrepancy arises because the list of essential requirements in the R&TTE Directive caters to the whole scope of equipment covered by the directive. With regard to TTE, the European Commission (EC) has decided that none of the Article 3.3 items are relevant. Also, while no Part 68 requirements corresponding to essential requirements 3.1(b) and 3.2 exist, these matters are addressed by other parts of the Code of Federal Regulations, for example, Part 15 ("Radio Frequency Devices"), which covers electromagnetic compatibility (EMC) as well as radio requirements. Furthermore, essential requirement 3.1(a) overlaps with the U.S. Occupational Safety and Health Administration (OSHA) programs for workplace safety. Taking all of this into account leads to the more realistic comparison of European and U.S. technical requirements for TTE presented in Table IV.

Table IV. Comparison of requirements for TTE.

Besides the essential requirements and harms delineated and compared above, Part 68 imposes additional limitations and makes specific provisions for hearing aid compatibility (see Table V). These requirements are specified with detailed technical parameters within Part 68 itself rather than being high-level statements like the essential requirements and harms.

Table V. Part 68 requirements for hearing aid compatability and additional limitations.

The R&TTE Directive does make provision in Article 3.3(f) for features to facilitate use by people with a disability. This is consistent with the Part 68 requirements for hearing aid compatibility. However, as mentioned above, the EC has decided that this provision should not be activated in relation to TTE. Similarly, although the other features in Table IV might possibly be considered in the context of other subclauses of R&TTE Directive article 3.3, that is not the view taken by the EC at this time.

These considerations lead to the conclusion that there is a limited degree of correspondence between the R&TTE Directive's essential requirements and the requirements outlined in Part 68. Each regulatory document contains requirements not addressed by the other. Part 68 has prescriptive telecommunications requirements for TTE not matched in the directive. The directive includes an essential requirement for safety that goes beyond Part 68 and implies technical requirements similar to those of the OSHA programs for workplace safety. And the directive also has an essential requirement concerning EMC and radio spectrum usage that in the United States would typically be addressed by other parts of the federal code, such as 47 CFR Part 15.

The Role of Standards

Both the R&TTE Directive and Part 68 make reference to independent standards for detailed technical requirements. The directive refers to harmonized standards, which means standards drawn up by a European standards organization in response to a mandate issued by the EC. In the case of Part 68 it is the technical criteria adopted by the Administrative Council for Terminal Attachments (ACTA). Both systems include procedures appropriate for protecting the openness and transparency of the process and for restricting attention to the essential requirements or harms. However, there is a substantive difference in the status each attributes to compliance with the standards.

When apparatus satisfies the relevant parts of the harmonized standards, then authorities must presume compliance with the corresponding essential requirements. Compliance with the harmonized standard remains entirely voluntary, however. It is completely open to the manufacturer to use other, nonharmonized standards, codes of practice, or other criteria to demonstrate that the essential requirements have been met. In fact, it is the manufacturer's responsibility to choose.

On the other hand, compliance with the relevant technical criteria drawn up by ACTA is mandatory; the possibility of relying on other means does not exist. Meeting the technical criteria provides a presumption of compliance with Part 68 that is rebuttable by FCC. This means that manufacturers need to have recourse to formal mechanisms that deal with situations in which the technical criteria cannot be sensibly applied or where appropriate criteria have not yet been developed. Telecommunications certification bodies (TCBs) in the United States do not have any authority to waive the rules or deal with equipment for which requirements have not been established.

ACTA's involvement is restricted to Part 68 matters. The role of standards with respect to EMC and radio in the United States is the responsibility of FCC. For safety, the responsibility falls partly within the OSHA program. In general, there is a strong link to international standards, which are adopted as mandatory to varying degrees. However, for the purpose of this discussion, the further point to note is that Part 68 invokes only a part of the regulatory standards affecting TTE. EMC and safety for TTE are covered elsewhere. By contrast, the R&TTE Directive covers all aspects.

Conformity Assessment

Table VI presents a comparison of compliance procedures available to companies marketing products in the EU and the United States. The EU procedures are drawn from a set of standardized modules that are part of the so-called global approach. Both EU and U.S. arrangements allow a supplier's declaration of conformity (SDoC) to be a basis for demonstrating compliance with the technical requirements. In neither case is there an obligation to base that declaration on third-party test data. Both cases involve considerably detailed administrative prescriptions for recordkeeping. The format of the declaration is not prescribed; however, a relevant EU standard–EN 45014–applies, and ACTA provides an informative example for the United States in its guidelines and procedures.

Table VI. Compliance procedures.

An alternative to the SDoC in the United States is full third-party certification by a TCB. A similar opportunity exists in the EU. A notified body may be prevailed upon to give a formal opinion regarding compliance. However, this falls short of an actual certification procedure.

A third option, known as full quality assurance, is available in the EU for product design and manufacture performed within a quality-management system based on EN ISO 9001:2000. This involves third-party assessment of the quality system but no product-by-product compliance scrutiny by that third party.

The declaration of conformity is an essential element in all of the EU conformity options. In the United States, by contrast, it is a separate and distinct alternative to TCB certification.

In addition to the Part 68 conformity assessment, TTE for use in the United States may require separate conformity procedures pertinent to EMC, radio spectrum matters, and OSHA workplace safety. EMC and radio conformity assessment procedures are different from those in Part 68. For example, such TTE as cordless telephones will require certification by a TCB process under FCC Part 15 rules as well as compliance with Part 68. The Part 15 TCB process is different from and independent of the one for Part 68, despite the similarity in nomenclature. OSHA workplace safety assessment requires testing by a third-party national recognized test laboratory.

In the EU, all these matters are integrated into the R&TTE Directive. Responsibilities and conformity assessment procedures are not fragmented unless the supplier chooses to have them so.

Marking, Labeling, and Public Records

Mandatory labeling to indicate compliance with regulatory requirements is a feature of both the EU and U.S. systems. In Europe, the labeling is generic (the CE mark). The label carries the unique number of any notified body involved in the conformity assessment and/or an alert symbol (an exclamation point inscribed in a circle) if the TTE cannot be used in all member states, as is the case with some cordless phones, for example. The United States has a generic format for labeling, but each type of TTE carries a unique identifier. The detail is not mandated directly in Part 68 but is controlled by ACTA, which has the authority under Part 68 to prescribe such matters.

There is no public record in the EU of equipment found compliant. Instead, the supplier is obliged to maintain certain supporting documentation for inspection by the authorities upon demand.

In the United States, the unique identifier allocated by ACTA allows a uniform public database of all compliant equipment to be maintained. This database is intended to make it easy for government authorities and the general public to identify the status of equipment.

Enforcement and Surveillance

A difference in terminology in this area makes comparison of the EU and U.S. systems confusing. In the EU, compliance monitoring at the highest level is undertaken by the administrations of the individual member states. Such market surveillance can take the form of a response to a complaint, a random check, or a routine systematic action. Notified bodies have no remit to initiate any such checks. However, a member state may seek a report from a notified body in a case where there is doubt about compliance.

The equivalent high-level surveillance activity in the United States, covering all TTE, is conducted by FCC and is perhaps better understood as enforcement. TCBs have no authority to act at this level. But confusion arises from the fact that TCBs are specifically obligated to conduct a systematic surveillance of products they have themselves certified. Clearly, this will not include TTE brought to market under the SDoC procedure. The surveillance is based on a sampling arrangement laid out in broad terms by FCC. This is in contrast to EU practice. In Europe, the conformity assessment bodies are not active in surveillance (enforcement), and the process is independent of the route chosen by the manufacturer to demonstrate compliance.

Network Interface Information

Both the R&TTE Directive, in Article 4.2, and Part 68, in Section 110(a) and (b), require network operators to make available technical information about network interfaces sufficient to facilitate the design of TTE compatible with the services and facilities offered. The obligation in the EU is to publish such information; in the United States it is to provide such information on request. The EU requires that updated information be published regularly, whereas service providers in the United States must inform customers if changes are likely to affect the compatibility of TTE.

Right to Connect/Disconnect

Not surprisingly, compliant TTE may be directly connected to a public network under both the EU directive (Article 7.1) and Part 68 (Section 100). Disconnection or refusal of connection is permitted only in the case of harm to the network or its functioning, as specified in Article 7.4 and Section 68.108, respectively. The disconnection arrangements in Part 68 are more specific about dealing with directly affected customers, but, with regard to restricting the rights of the network operator or service provider to refuse connection, no difference of substance exists.

Conclusion

At the level of general features, the R&TTE Directive and Part 68 have much in common. Both rely strongly on the SDoC. Their high-level requirements--essential requirements and network harms--are similar. And both systems specify a right to connect compliant equipment and an obligation for network operators to make interface information available.

However, it is difficult to avoid concluding that Part 68 is much more restrictive than the directive at the practical application level. Part 68 is narrower in its scope and addresses only some of the technical requirements for market access. It makes standards mandatory, leaving little discretion in dealing with innovation other than that placed in the hands of FCC. The U.S. regulation also demands interaction with a third party, even if only for registration purposes, whereas the EU directive does not. Finally, Part 68 is distinguished from its European counterpart by failing to integrate conformity assessment for EMC, radio spectrum usage, and safety.

Both the R&TTE Directive and Part 68 impose significant bureaucratic and administrative burdens on the TTE supplier. Whether the unique labeling and central registration characteristic of the U.S. system leads to a lower incidence of noncompliance in the U.S. marketplace is difficult to determine. Results of a comparison of pre-R&TTE Directive experience in the EU–where similar obligations obtained–with current EU practices tend to suggest not.

So, despite the potential for convergence hinted at in this article's introduction and despite the common general features just noted, technical barriers to market access remain real, asymmetric, and divergent, with the United States presenting the more difficult hurdles. Only part of the problem lies in Part 68 itself. Much has to do with a fragmented overall approach to technical regulation.

References

1. Official Journal of European Communities L 031 (Feb. 4, 1999): 0003-0080.

2. Official Journal of the European Communities L091 (April 7, 1999): 0010-0028.

3. Code of Federal Regulations, 47 CFR 68.

Barry Cartman is director of Cartman dot ORG Ltd. (Surrry, UK). He can be reached at mail@cartman.org.uk.