Response to IWCE Urgent Communications FCC Article

[Editor’s note: The following is a statement from Hytera US regarding an IWCE’s Urgent Communications article posted on Nov. 12 about the enactment of the Secure Equipment Act of 2021, which references an FCC list of China-based firms. After Hytera officials expressed their objections about the story’s accuracy, IWCE’s Urgent Communications removed the article from its web site to conduct further research on the matter.

Although Hytera is on the FCC list, the company asserts that the products it sells in the U.S. are not covered by the definition associated with the FCC list. (The future scope of this FCC list is the subject of an ongoing proceeding referenced in the Secure Equipment Act of 2021.) IWCE’s Urgent Communications agrees that there are significant questions about the law’s applicability to Hytera, which were not reflected in the original story. IWCE’s Urgent Communications regrets the inaccuracy and apologizes for any misunderstanding.

What follows (reprinted in full and unedited) is Hytera’s statement about the article, which was brought to the attention of IWCE’s Urgent Communications yesterday.]

In an article on November 12th, there was an inaccurate misleading headline published in Urgent Communications that stated ‘New law prohibits FCC authorizing gear from Hytera, other China-based firms’. The article begins with ‘LMR manufacturer Hytera Communications and other China-based technology companies that “pose an unacceptable risk to national security” will not be able to secure FCC authorizations for new equipment under legislation that President Joe Biden signed into law yesterday.’ This is an objectively verifiable false statement.

Being aware of misinterpretations of The Secure Equipment Act of 2021 (SEA) and Hytera in the news coverage, Hytera finds it necessary to make some clarifications to our partners and customers. Hytera’s response is not a matter of company position or opinion. It is a matter of fact based on the letter of the law.

The Secure Equipment Act of 2021 (SEA) was signed into law by President Biden on November 11. SEA is part of the effort to ensure America’s national security. “This bill requires the Federal Communications Commission (FCC) to establish rules stating that it will no longer review or approve any authorization application for equipment that is on the list of covered communications equipment or services.”

• The SEA does not direct the FCC to authorize blanket prohibitions against the equipment manufactured by the identified entities and is not a ban of all equipment manufactured by Hytera.
• The “list of covered communications equipment or services” is about broadband equipment or services having specific network capabilities and uses.
• The list does not include the LMR/DMR equipment Hytera markets and sells in the United States.
• The SEA also expressly prohibits revocation or removal of existing equipment based on the outcome of the proceeding undertaken under authority of the SEA

The SEA provides the FCC with statutory authority to establish rules in the proceeding initiated by FCC’s Notice of Proposed Rulemaking (NPRM). Hytera is actively involved in the NPRM and has requested that the FCC clarify the scope of the Covered List to make clear that most of Hytera’s equipment is outside the scope of the Covered List.

It is also important to note that Hytera’s new H-Series line of DMR products are already FCC type accepted so this does not impact the upcoming DMR product launch.

Additional information

The Secure Equipment Act of 2021 (SEA) is limited to covered communications equipment or services on the list of covered communications equipment or services published by the Commission under section 2(a) of the Secure and Trusted Communications Networks Act of 2019 (47 U.S.C. 1601(a)).

Hytera’s LMR/DMR equipment is excluded in several different ways.

Section 2(b)(2) limits the effect of the SNA to equipment capable of routing or redirecting user data traffic or permitting visibility into any user data or packets that such equipment or service transmits or otherwise handles; or that is capable of causing the network of a provider of advanced communications service to be disrupted remotely; or otherwise poses an unacceptable risk to the national security of the United States or the security and safety of United States persons. Hytera’s LMR/DMR equipment does not fit this definition.

Section 2(c)(3) of the SNA brings the Covered List created by 889(f)(3) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232; 132 Stat. 1918) (the “2019 NDAA”) within the scope of the SNA. That does not cover Hytera’s LMR/DMR equipment because it specifically exempts 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.