Prohibited Telecommunications Equipment

[Fara Fasat]

As everyone knows, section 889 of the 2019 NDAA prohibited the use of telecommunications equipment made by Huawei, ZTE, and others. It was implemented in the FAR in August and December 2019 with two certifications and a clause.

My question is this: what is 'telecommunications equipment'? It was not defined in the NDAA, nor in the certifications or the clause. There is no definition anywhere else in the FAR. The term is used in Part 39, but it is not defined. The closest the FAR comes to a definition is in the list of exceptions, which states that equipment "that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles" is excepted. I guess we can infer that if the equipment does do that, it is the covered equipment.

Do we have anything better than that? 

[formerfed]

Look at FAR 4.2101.  It’s pretty clear the focus is on the manufacturer and country of origin rather than precise definitions

[Moderator]

I would look at the section and then the Conference report.    

Section 889: Prohibition on certain telecommunications and video surveillance services or equipment. 

Note:  I went back to Congress.gov and realized there is no paragraph (e) that I could find.  I'm going to check the .pdf file to see if it was an editiing error by the LOC.

I checked the .pdf version and no (e).  The statute pages which are in sequence so there is nothing missing--that I see.  

(d) WAIVER AUTHORITY.—

(f) DEFINITIONS.—In this section:

Apparently, we have a section of the NDAA for 2019 that doesn't have a paragraph (e)

FARA:

The answer to your question is what is in paragraph (f).  

[Fara Fasat]

Bob, thanks, but the report doesn't provide any further info.

Formerfed - if what you are saying is that the prohibition applies to any equipment manufactured by the named companies ("the focus is on the manufacturer..."), then I disagree. There wouldn't be any exceptions if it applied to the whole company. I believe it applies to "telecommunications equipment" and am looking for more information on what that is.

[formerfed]

Fara Fasat,

Sorry I didn’t look close enough at your question.  If I were a contractor, there’s no doubt in my mind what I would do and that’s clearly avoid anything made by those companies.  But after looking closer, I see there is room for question.  GSA addressed that with a class deviation for their contracts.  Here are a list of Q&As they prepared. 

 

[ron vogt]

Formerfed - that's definitely the safer course of action. But if your product lines have lots of Huawei et. al. equipment, you might need to start deciding what is prohibited and what is not. Also, I've gone through those GSA Q&As, and several other guides prepared by law firms, industry associations, etc, and none have offered a further definition. At this point maybe the best we're going to get is the reverse of the exception. 

Bob - sorry, I don't see an answer in (f). All it does is use the term 'telecommunications equipment.' The word 'covered' simply refers to the companies, not a narrowing of the types of equipment.

[Neil Roberts]

On 5/12/2020 at 8:11 AM, Fara Fasat said:

My question is this: what is 'telecommunications equipment'? It was not defined in the NDAA...

Just for some general understanding, I offer the following.

The Telecommunications Act of 1934, as amended, 47 USC 151, et seq. (which established the FCC), includes definition section 153 (50) and (52) as follows:

 (50) Telecommunications

The term "telecommunications" means the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.

(52) Telecommunications equipment

The term "telecommunications equipment" means equipment, other than customer premises equipment, used by a carrier to provide telecommunications services, and includes software integral to such equipment (including upgrades)

Wikipedia "telecommunication equipment" examples include fax, mobile phones, landline telephones and answering machines (for those who remember what that was).

 

Edited May 13, 2020 by Neil Roberts
change telephone to telecommunication in last sentence

[Fara Fasat]

Thanks Neil. I think we just have to go with that. There's nothing better coming from the FAR. One would think they would define a term before imposing such draconian measures ....

And it's only getting worse. The prohibition is bad enough, but the "use" ban goes into effect in August unless it is repealed or revised before then. It would ban any company from getting government contracts if it simply uses the prohibited equipment in its operations. 

[Moderator]

U.S. Moves to Cut Off Chip Supplies to Huawei.

 

[formerfed]

On 5/13/2020 at 10:04 AM, Fara Fasat said:

Thanks Neil. I think we just have to go with that. There's nothing better coming from the FAR. One would think they would define a term before imposing such draconian measures ....

Just a guess but providing a very precise definition of telecommunication opens the door to lots of exceptions.  It’s a very difficult term to describe in today’s ever changing technology.  The 1934 Act Neil cites is clearly obsolete.  The Wikipedia definition isn’t much better.  

[Neil Roberts]

2 hours ago, formerfed said:

Just a guess but providing a very precise definition of telecommunication opens the door to lots of exceptions.  It’s a very difficult term to describe in today’s ever changing technology.  The 1934 Act Neil cites is clearly obsolete.  The Wikipedia definition isn’t much better.  

formerfed, did you mean the definition of telecommunication or telecommunication equipment?  I believe that having some idea of simple equipment that meets the definition of transmitting between two points without changing its form might be helpful as a starting point for developing understanding of "telecommunication." The complete listing of telecommunications equipment included in Wikipedia is as follows:

"Telecommunications equipment can be broadly broken down into the following categories:^[3]

• Public switching equipment
  • Analogue switches
  • Digital switches
    • Voice over IP switches
    • Virtual Reality (VR)
• Transmission equipment
  • Transmission lines
    • Optical fiber
    • Local loops
  • Base transceiver stations
  • Free-space optical communication
    • Laser communication in space
  • Multiplexers
  • Communications satellites
• Customer premises equipment (CPE)
  • Customer office terminal
  • Private switches
  • Local area networks (LANs)
  • Modems
  • Mobile phones
  • Landline telephones
  • Answering machines
  • Teleprinters
  • Fax machines
  • Pagers
  • Routers
  • Wireless devices

Semiconductors

Most of the essential elements of modern telecommunication are built from MOSFETs (metal-oxide-semiconductor field-effect transistors), including mobile devices, transceivers, base station modules, routers, RF power amplifiers,^[4] microprocessors, memory chips, and telecommunication circuits.^[5] As of 2005, telecommunications equipment account for 16.5% of the annual microprocessor market.^{[6] "}

I think the FCC should be current with executing regulations consistent with the Act. I have not checked there.  

I checked again and still found the Communications Act (not the Telecommunications Act) to be current law and not obsolete. 

Edited May 15, 2020 by Neil Roberts
name of Act

[formerfed]

Neil Roberts,

The issue I see is how does the FAR take all this and create a workable definition?  Among other things, technology changes so rapidity, and providing a definition so FAR users can apply is quickly outdated.  For example, under the Wikipedia CPE examples, do tablets or laptops using Zoom qualify?   

Coming up with something simple that’s used to determine if certain equipment is allowed or not is a huge challenge.  The post Ron Vogt made about he’s “gone through those GSA Q&As, and several other guides prepared by law firms, industry associations, etc, and none have offered a further definition. At this point maybe the best we're going to get is the reverse of the exception” is the most realistic assessment.

[Neil Roberts]

formerfed, there are two open FAR Council cases covering telecommunication and its equipment as discussed here. One is scheduled for release of a final rule 6/3/2020 (the other case is still pending). I don't know if the public comments asked for definitions for telecommunication or equipment. Without such definitions, it seems potentially open to argument that the current and proposed FAR rules (clauses/provisions) are invalid due to vagueness. The Communications Act and its definitions were not specifically made applicable so far. I agree that determining and applying equipment facts to a definition seem to be difficult under the best of circumstances.      

Edited May 16, 2020 by Neil Roberts
revised 3rd sentence because public comments not available to me

[formerfed]

I doubt of the final rule coming out 6/3 is going to change anything about further definitions.  But we’ll know in three weeks or so.

I personally don’t see a valid case being made about vagueness.  The subject is equipment from certain Chinese manufacturers.  Only a very small segment of the telecommunications offerings fall into a gray area.   Besides companies have time, and can ask for more, to find an alternative source. 

[formerfed]

Also this discussion reminds me of something Steve Kelman said years ago about suppliers suing the customer.

In this case the customer said no equipment from a certain manufacturer because it’s a national security risk. Suppliers are questioning and brining up legal issues about precise definitions and “what do you mean?”