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Starkey Laboratories's Inc. Waiver/Rulemaking

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Released: May 31, 2012

Federal Communications Commission

DA 12-839

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Starkey Laboratories, Inc. Petition for Rulemaking )
ET Docket No. 09-38
and Request for Waiver of Section 15.247(a)(2) of )
RM-11523
the Commission’s Rules
)

ORDER

Adopted: May 29, 2012

Released: May 31, 2012

By the Chief, Office of Engineering and Technology:

I.

INTRODUCTION

1.
By this action, we dismiss a petition for rulemaking and deny a request for waiver filed
by Starkey Laboratories, Inc. (Starkey). In its petition for rulemaking, Starkey requests that the
Commission amend Section 15.247(a)(2) of its regulations for unlicensed devices using spread spectrum
and other digital modulation techniques in the 902-928 MHz (915 MHz), 2400-2483.5 MHz (2.4 GHz),
and 5725-5850 MHz (5.8 GHz) radio frequency (RF) bands to reduce the minimum required signal
bandwidth from 500 kilohertz to 100 kilohertz.1 In its waiver request, Starkey asks that we waive the
minimum 500-kilohertz bandwidth requirement in Section 15.247(a)(2) to allow its unlicensed assistive
listening devices (ALDs) and hearing aid programming devices to be approved to operate in the 915 MHz
band with a minimum bandwidth of 100 kilohertz until the Commission rules on its petition for
rulemaking.2 For the reasons discussed below, we conclude that Starkey’s petition for rulemaking plainly
does not warrant consideration and that Starkey’s proposed waiver of our Part 15 spread spectrum
communications rules would undermine the underlying purpose of those rules.

II.

BACKGROUND

2.
Part 15 of the Commission’s rules provides for the operation of low power radio
frequency (RF) devices without an individual license from the Commission. Before marketing them to
the public, parties responsible for all Part 15 unlicensed devices must demonstrate compliance with the


1 See Starkey Laboratories, Inc. Petition for Rulemaking of Section 15.247(a)(2) of the Commission’s Rules, filed
April 11, 2008 (Starkey Rulemaking Petition).
2 See Starkey Laboratories, Inc., Request for Waiver of Section 15.247 (a)(2) of the Commission’s Rules, filed
April 11, 2008 (Starkey Request for Waiver); Starkey Laboratories, Inc. Amended Request for Waiver of
Section 15.247(a)(2) of the Commission’s Rules, filed November 12, 2008 (Starkey November 12, 2008 Amended
Request for Waiver); Starkey Laboratories, Inc. Amended Request for Waiver of Section 15.247(a)(2) of the
Commission’s Rules, filed July 22, 2011 (Starkey July 22, 2011 Amended Request for Waiver). Starkey requests a
waiver of Section 15.247(a)(2) for a device that is already authorized under Section 15.247 – its SurfLink Media
Controls – and for three devices that are already authorized under Section 15.249 – its SURFLink Programmer,
SURFLink Remote Control, and WiSeries RIC (Receiver-in-Canal) – which does not impose a minimum 6 dB
bandwidth requirement. Starkey submits that it would like to increase the range and link margin of the devices
authorized under Section 15.249, but cannot do so under the reduced power limit in Section 15.249. Id. at 3-4. See
FCC Equipment Authorization database at https://apps.fcc.gov/oetcf/eas/reports/GenericSearch.cfm.

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DA 12-839

Commission’s rules and obtain an FCC equipment authorization.3 As a general condition of operation,
Part 15 devices may not cause harmful interference to any authorized services and must accept any
interference that may be received from them or other Part 15 devices.4
3.
The Commission adopted its Part 15 spread spectrum rules to allow the operation of
wide-bandwidth devices in the 915 MHz, 2.4 GHz, and 5.8 GHz bands.5 Spread spectrum systems use
special modulation techniques that spread their transmitted energy across a wide bandwidth, which
reduces the power density of the signal in any one portion of the occupied frequency band, thereby
reducing the potential to cause interference to other signals in the same frequency band. At the receiving
end, the spreading technique used in the transmitter is reversed to enable detection and decoding of the
signal. This reversal of the signal spreading process enables the suppression of strong undesired signals,
making systems using spread spectrum modulation techniques relatively immune to interference from
outside sources. Systems employing spread spectrum techniques are inherently more secure, and they
have less potential to cause interference to and are less susceptible to receive interference from other
devices operating in the same band than conventional communications systems. Digital modulation
techniques other than spread spectrum have spectrum characteristics similar to direct sequence spread
spectrum techniques and spread the transmitted energy across a wide bandwidth. Thus, these digital
modulation techniques have no more potential to cause interference to other devices in the same band
than direct sequence spread spectrum techniques. If designed appropriately, digital non-spread spectrum
systems will also have immunity to interference so they can operate effectively for their intended purpose
in the presence of other signals in the same band. Because of these similarities, the Commission has
allowed low power Part 15 devices that use digital modulation techniques to operate under the same
Part 15 rules it applied to devices that use spread spectrum techniques.6 The Commission’s Part 15
spread spectrum and other digital modulation rules have promoted widespread business and consumer use
of unlicensed devices in the 915 MHz, 2.4 GHz, and 5.8 GHz bands that employ wide bandwidths in a
very spectrally efficient manner.
4.
Under Section 15.247(a)(2), digitally modulated systems operating in the 915 MHz,
2.4 GHz, and 5.8 GHz bands must employ a minimum 6 dB (i.e., “spreading”) bandwidth of
500 kilohertz.7 The Commission specifically chose the minimum 500-kilohertz 6 dB bandwidth to ensure
that wideband digital devices (direct sequence spread spectrum and other digital modulation techniques)
operating with higher power than normally allowed under the Part 15 general emission limits would
operate compatibly with other authorized radio systems in the 915 MHz, 2.4 GHz, and 5.8 GHz bands.8
Such systems also must not exceed a peak conducted output power of 1 Watt and a peak conducted power
spectral density (PSD) of 8 dBm per 3 kilohertz (8 dBm/3 kHz).9 Although devices that operate under


3 See 47 C.F.R. §§ 15.1(c), 15.201(b).
4 47 C.F.R. § 15.5.
5 See Authorization of spread spectrum and other wideband emissions not presently provided for in the FCC Rules
and Regulations, Gen Docket No. 81-413, First Report and Order, 101 FCC 2d 419 (1985) (Spread Spectrum
R&O
).
6 See Amendment of Part 15 of the Commission’s Rules Regarding Spread Spectrum Devices, ET Docket
No. 99-231, Second Report and Order, 17 FCC Rcd 10755, 10760 para. 11 (2002) (Spread Spectrum 2nd R&O).
7 47 C.F.R. § 15.247(a)(2). At the 6-dB bandwidth, the signal power is 6 dB below (i.e., one-quarter of) the
maximum signal power.
8 See Spread Spectrum R&O, 101 FCC 2d at 427 para. 26; Spread Spectrum 2nd R&O, 17 FCC Rcd at 10760-61
paras. 11-13.
9 47 C.F.R. §§ 15.247(b)(3); 15.247(e). Conducted output power and PSD is the amount of power delivered to the
base of a device’s transmitting antenna. The 8 dBm/3 kHz conducted PSD limit approximately equates to uniformly
(continued….)
2

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DA 12-839

Section 15.247 may use a maximum conducted output power of 1 Watt, many devices authorized under
the Section 15.247 rules use less than 1 Watt conducted output power for various design reasons, such as
conserving battery life. There is no maximum bandwidth limit in Section 15.247 other than the
requirement to stay within the designated bands of operation. At the same output power, a signal with a
wider bandwidth would have a lower PSD than with a narrower bandwidth – as the energy would be more
widely dispersed over the available spectrum – which would further reduce the signal’s potential to cause
interference. Signals using a wider 6 dB bandwidth than required could also provide a higher data rate
(i.e., information transfer rate) than narrower bandwidth signals.
5.
Starkey states that a reduction of the required minimum 6 dB bandwidth from 500 to
100 kilohertz is needed so its ALDs and hearing aid programming devices can operate with less power
and bandwidth to communicate with hearing aids, which typically have modest RF signal processing
capability due to their physical size and limited power radio subsystem.10 Starkey argues that by using
only 100-kilohertz wide signals and maintaining the 8 dBm/3 kHz conducted PSD limit, its devices’
overall RF power and interference potential would be lower than those of devices using 500-kilohertz
wide signals and a conducted PSD of 8 dBm/3 kHz.11 Starkey further states that a reduction of the
minimum bandwidth is needed so its Section 15.247 compliant devices may transmit a single RF carrier
that is narrower than 500 kilohertz and would be time multiplexed in the right and left channels, instead
of each device using two transmitters to transmit two overlapping frequency shift keying (FSK)12
modulated RF carriers to comply with the 500-kilohertz bandwidth requirement – which increase the
devices’ cost, complexity, and power consumption.13

6.
The Commission issued Public Notices soliciting comments on Starkey’s petition for
rulemaking and request for waiver on March 26, 2009.14 Itron, Inc., Medical Device Manufacturers
(Continued from previous page)


spreading the maximum 1 Watt conducted output power over the minimum 500-kilohertz 6 dB bandwidth. In 1990,
the Commission added the 8 dBm/3 kHz conducted PSD limit to the Part 15 spread spectrum rules to ensure that the
transmitted energy is uniformly spread over the minimum signal bandwidth of 500 kilohertz to limit the potential for
interference to authorized services in the same frequency band. See Amendment of Parts 2 and 15 of the Rules with
regard to the operation of spread spectrum systems, GEN. Docket No. 89-354, Report and Order, 5 FCC Rcd 4123,
4124 para. 12 (1990). In 1997, the Commission corrected the reference in the Part 15 spread spectrum rules to the
maximum PSD limit from an average limit to a peak limit. See Amendment of Parts 2 and 15 of the Commission’s
Rules Regarding Spread Spectrum Transmitters, ET Docket No. 96-8, RM-8435, RM-8608, RM-8609, Report and
Order
, 12 FCC Rcd 7488, 7506 para. 34 (1997).
10 See Starkey Amended Request for Waiver at 3-6. Starkey claims that frequency hopping spread spectrum (FHSS)
and direct sequence spectrum (DSSS) are not viable options for communicating with hearing aids due to their
increased signal processing and power requirements. See Starkey Labs, Inc. Ex Parte filing, dated October 8, 2008,
at 3.
11 See Starkey Amended Request for Waiver at 8. To avoid interfering with other devices, Starkey submits that its
devices would employ a “Listen Before Talk” mechanism along with an adaptive frequency selection algorithm.
See Starkey Laboratories, Inc. Amended Request for Waiver, ET Docket No. 09-38, filed July 22, 2011, at 3, 5.
12 FSK is a frequency modulation technique in which digital information is transmitted through discrete frequency
changes of an RF carrier wave.
13 See Starkey Laboratories, Inc. Ex Parte, filing, dated August 26, 2011, at 2.
14 See Public Notice, DA 09-674, Office of Engineering and Technology Seeks Comment on Petition for
Rulemaking by Starkey Laboratories, Inc. To Amend the Minimum Bandwidth Requirement In Section 15.247(a)(2)
for the 902-928 MHz Band, RM-11523, 24 FCC Rcd 3635 (rel. March 26, 2009); Public Notice, DA 09-676, Office
of Engineering and Technology Declares the Starkey Laboratories, Inc. Request for a Waiver of Part 15 for the
902-928 MHz Band To Be a “Permit-But-Disclose” Proceeding for Ex Parte Purposes and Requests Comments,
ET Docket No. 09-38, 24 FCC Rcd 3641 (rel. March 26, 2009).
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DA 12-839

Association, Telesaurus Holdings GB LLC and Skybridge Spectrum Foundation, and USA Mobility, Inc.
filed comments opposing Starkey’s Request for Waiver and/or Petition for Rulemaking. Hearing
Industries Association and the European Hearing Industries Manufacturers Association, Hearing Loss
Association of America, Institute of Electrical and Electronics Engineers 802.18 Radio Regulatory
Technical Advisory Group, ON Semiconductor, Progeny LMS, LLC, Pulse Nederland B.V., Williams
Sound Corporation, and Zarlink Semiconductor filed comments supporting Starkey’s Request for Waiver
and/or Petition for Rulemaking.

III.

DISCUSSION

7.
We find that Starkey’s requested modification of our Part 15 spread spectrum
communications rules plainly does not warrant consideration.15 First, Starkey has not provided any
analysis to demonstrate that its proposal will not increase the potential for interference to licensed users
who share the 915 MHz, 2.4 GHz, and 5.8 GHz bands. Second, the current Section 15.247 rules have
permitted a wide array of unlicensed spread spectrum and digital devices to proliferate, including WiFi
devices, meter readers used in Smart Grid systems, and many other unlicensed devices used ubiquitously
in homes and businesses across the country that co-exist with licensed operations. Starkey has not
demonstrated in its proposal that this current ecosystem could be maintained if we reduced the minimum
500-kilohertz bandwidth requirement in Section 15.247(a)(2). As noted above, the 500-kilohertz
bandwidth requirement is a minimum limit and many of these unlicensed devices use an even wider
bandwidth to increase their data transfer rates and therefore have conducted power spectral density levels
of less than 8 dBm/3 kHz. Also, although digitally modulated devices that operate under Section 15.247
may use a maximum conducted output power of 1 Watt, because of battery life concerns and RF
emissions exposure limits, many devices authorized under Section 15.247 use less than the 1 Watt
maximum allowed conducted output power, which also results in a power spectral density of less than the
maximum allowed 8 dBm/3 kHz.16 The operation in the same frequency band of a relatively great
number of narrowband 100-kilohertz wide signals at the maximum allowed conducted power spectral
density of 8 dBm/3 kHz together could make the band unusable for devices currently operating under
Section 15.247.
8.
We are authorized to grant a waiver under Section 1.3 of the Commission’s rules if the
petitioner demonstrates good cause for such action.17 Good cause, in turn, may be found and a waiver
granted “where particular facts would make strict compliance inconsistent with the public interest.”18 To
make this public interest determination, the waiver cannot undermine the purposes of the rule, and there
must be a stronger public interest benefit in granting the waiver than in applying the rule.19 Starkey’s


15 The Office of Engineering and Technology may dismiss or deny a petition for rulemaking that it finds is
repetitious, moot, or plainly does not warrant consideration by the Commission. See 47 C.F.R. § 0.241(e).
16 For example, a search of the Commission’s equipment authorization database reveals that many devices operate at
power levels in the range of 70-500 milliwatts (mW), depending on the intended use. Power spectral density levels
are typically in the range of -10 dBm/3 kHz to 5 dBm/3 kHz.
17 See 47 C.F.R. § 1.3. See also ICO Global Communications (Holdings) Limited v. FCC, 428 F.3d 264 (D.C. Cir.
2005); Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164 (D.C. Cir. 1990); and WAIT Radio v. FCC, 418
F.2d 1153 (D.C. Cir. 1969).
18 See Northeast Cellular, 897 F.2d at 1166; see also ICO Global Communications, 428 F.3d at 269 (quoting
Northeast Cellular); and WAIT Radio, 418 F.2d at 1157-59.
19 See, e.g., WAIT Radio, 418 F.2d at 1157 (stating that even thought the overall objectives of a general rule have
been adjudged to be in the public interest, it is possible that application of the rule to a specific case may not even
serve the public interest if an applicant’s proposal does not undermine the public interest policy served by the rule);
(continued….)
4

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DA 12-839

waiver request does not meet the above criteria in that it would undermine the fundamental purpose of
Section 15.247(a)(2). As noted above, the Commission specifically chose the 500-kilohertz minimum
6 dB bandwidth in Section 15.247(a)(2) to exclude narrowband systems from using the higher power
limits of Section 15.247.20 We find that Starkey’s request to use a reduced bandwidth would undermine
the underlying purpose of Section 15.247(a)(2) to allow only wideband digital devices to operate with
higher power than is normally allowed under Part 15 general emission limits. We note that several
commenters supported Starkey’s waiver request, arguing that the public interest would be served by
helping people with hearing loss have better access to communications equipment and function in more
settings, and we do not disagree with that objective. However, we must balance the public interest benefit
in granting the waiver, including the need to waive the rule to achieve this objective, against the public
interest benefit in applying the rule to avoid negative effects on other users of the spectrum, as discussed
above. Starkey has not provided persuasive evidence on either point, and we note that it already is
marketing equipment that complies with the rules it has asked us to waive.21 We thus conclude that the
potential public interest benefit in this case is not stronger than applying the rules.
9.
For the reasons noted above, we conclude that modifying Section 15.247(a)(2) to reduce
the minimum required 6 dB bandwidth of 500 kilohertz for unlicensed devices that operate in the
915 MHz, 2.4 GHz, and 5.8 GHz RF bands plainly does not warrant consideration by the Commission.
We also conclude that Starkey’s request for waiver of the minimum 500-kilohertz bandwidth requirement
would undermine the underlying purpose of Section 15.247(a)(2) and would not be in the public interest.
Thus, we dismiss Starkey’s petition for rulemaking to modify Section 15.247(a)(2) and deny Starkey’s
request for waiver of Section 15.247(a)(2).

IV.

ORDERING CLAUSES

10.
Accordingly, IT IS ORDERED that, pursuant to the authority granted in Sections 4(i),
302, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. §§ 4(i), 302(a), 303(r), and
Sections 0.31 and 0.241 of the Commission’s rules, 47 C.F.R. §§ 0.31, 0.241, the Petition for Rulemaking
of Starkey Labs, Inc. IS DISMISSED and the Request for Waiver of Starkey Labs, Inc. IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Julius P. Knapp
Chief, Office of Engineering and Technology
(Continued from previous page)


and Northeast Cellular, 897 F.2d at 1166 (stating that in granting a waiver, an agency must explain why deviation
from the general rule better serves the public interest than would strict adherence to the rule).
20 See para. 4, supra.
21 An examination of our equipment authorization database and Starkey’s Internet site reveals that Starkey is
currently marketing a device authorized under Section 15.247 – known as the SURFLink Media Device – that
interconnects with and transmits digitally modulated audio signals to hearing aids from several media sources,
including televisions, radios, and MP3 players. Starkey is also marketing three devices that are authorized under
Section 15.249 – known as the WiSeries RIC (Receiver-in-Canal), for wireless communications between hearing
aids, the SurfLink Programmer, for wireless hearing aid programming, and the SurfLink Remote Control, for
wireless control of hearing aid settings (i.e., on/off; volume). See Starkey July 22, 2022 Amended Request for
Waiver at 7; Starkey Laboratories, Inc. Ex Parte filing, submitted August 26, 2011, at 2.
5

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