D.C. Circuit Defense of Equipment Authorization Rules
On April 23, 2026, the Federal Communications Commission and the United States Department of Justice filed their joint Brief for Respondents in the U.S. Court of Appeals for the District of Columbia Circuit in Hikvision USA, Inc. v. FCC, No. 25-1274. The brief responds to Hikvision USA, Inc.'s petition for review challenging the Commission's Second Report and Order in ET Docket No. 21-232 (FCC 25-71), released on October 29, 2025.
The challenged 2025 Order established a framework under 47 C.F.R. § 2.939(e) enabling the FCC's Office of Engineering and Technology (OET) and Public Safety and Homeland Security Bureau (PSHSB) to review and place limitations on previously granted equipment authorizations for items on the Covered List. Such limitations prohibit future importation and marketing of covered equipment without disrupting consumers' continued operation of devices already purchased.
- Case: Hikvision USA, Inc. v. FCC and United States of America, No. 25-1274 (D.C. Cir.)
- Intervenor in Support of Respondents: Motorola Solutions, Inc.
- Order Under Review: Second Report & Order and Second FNPRM, FCC 25-71 (rel. Oct. 29, 2025)
- Key Regulation Challenged: 47 C.F.R. § 2.939(e)
Threshold Challenge to Hikvision's Standing
The FCC and DOJ argue that Hikvision lacks Article III standing to bring a facial pre-enforcement challenge against the 2025 Order. The brief asserts that 47 C.F.R. § 2.939(e) does not itself require or forbid conduct by Hikvision or automatically restrict any existing authorizations.
Under the procedural rule, any restriction requires the issuance of a public notice, a minimum 30-day public comment period, and an assessment balancing national security risks against economic and supply chain considerations before final staff determinations are made. The government maintains that Hikvision failed to show concrete, impending harm caused by the rule itself rather than prior regulatory listings or court rulings.
- No automatic restriction: Limitations require notice, public comment, and balancing of public interest factors under 47 C.F.R. § 2.939(e)(1)–(4).
- Subsequent notice: A Public Notice (DA 26-294) was issued March 27, 2026, with comments due May 6, 2026, but standing is evaluated at the time the petition was filed.
- Causation standard: Alleged procurement declines were not concretely tied to the procedural amendment versus the preexisting Covered List placement.
Statutory Authority Under the Secure Equipment Act and Title III
On the merits, the Commission and DOJ contend that statutory authority to restrict covered equipment authorizations is firmly established. The brief highlights that in Hikvision USA, Inc. v. FCC (Hikvision I), 97 F.4th 938 (D.C. Cir. 2024), the court already upheld rules prohibiting new equipment authorizations for Covered List devices, finding such actions authorized and mandated by the Secure Equipment Act of 2021 (Pub. L. No. 117-55).
The respondents explain that Section 2(a)(3)(B) of the Secure Equipment Act explicitly contemplated future rulemakings to examine and adopt rules for the review or revocation of prior authorizations. Furthermore, the Commission's preexisting authority under Title III of the Communications Act—including Section 302 (47 U.S.C. § 302a) governing interference and public interest, Section 303(e) addressing external effects, Sections 303(g) and 303(r), and Communications Assistance for Law Enforcement Act (CALEA) provisions under 47 U.S.C. §§ 229 and 1004—collectively authorize the agency to safeguard communications networks from national security threats.
- Secure Equipment Act § 2(a)(3)(B): Clarifies FCC authority in separate proceedings to adopt rules providing for review or revocation of covered authorizations.
- Title III Powers: Broad public interest mandates under 47 U.S.C. §§ 302a, 303(e), 303(g), and 303(r) permit consideration beyond narrow radiofrequency interference.
- CALEA Safeguards: Equipment authorization restrictions support common carrier network security obligations under 47 U.S.C. § 1004.