Intervenor Motorola Files in Support of FCC 'Covered List' Actions vs. Hikvision, Dahua

The FCC rightly put Hikvision and Dahua video equipment on its “covered list” of network gear deemed to pose a threat to U.S. security, Motorola Solutions said in a brief filed Tuesday at the U.S. Court of Appeals for the D.C Circuit (docket 23-1032). The Chinese companies are challenging the classification (see 2308310001) in the FCC’s Nov. 25 order barring authorization of network equipment on the covered list (see 2304250043).

The case doesn’t require the court to “guess at Congress’s intent or speculate on the scope of the Commission’s authority,” Motorola said. In the 2021 Secure Equipment Act, “Congress expressly directed the Commission to ‘clarify that the Commission will no longer review or approve any application for equipment authorization for equipment that is on the list of covered communications equipment or services published by the Commission,’” Motorola said. In that act, Congress “ratified and endorsed the very FCC actions Petitioners challenge, including the placement of their equipment on the Covered List,” the pleading said.

Motorola also cited the National Defense Authorization Act, in which Congress decided the equipment in question “poses an unacceptable national-security risk.” The Chinese companies claim the order “makes all infrastructure critical, including ‘used car lots,’ but that is a gross mischaracterization,” Motorola said: “The Order simply borrows from elsewhere in federal law in describing what facilities ‘could’ be deemed critical infrastructure.”

Congress and the FCC “placed Petitioners’ video-surveillance equipment that meets certain criteria on the Covered List for one simple reason -- it endangers national security,” Motorola said. “In a series of statutes and orders, the federal government has with one voice determined that this equipment should not connect with government networks, should not be subsidized with federal dollars, and -- in the Order under review -- should not be authorized for use in connection with American broadband networks,” the company said.

Motorola told the court the challenge is also untimely. Hikvision and Dahua launched the challenge under the Hobbs Act, which has a 60-day limitation period, the company said: “Yet their lead challenge -- as they acknowledge -- is to the FCC’s inclusion of their equipment on the Covered List in a 2020 order. The 2023 Order merely builds upon that 2020 order as Congress required and does not reopen the 2020 order to challenge.”

Motorola has been active at the FCC arguing in favor of putting the Chinese gear makers on the covered list (see 2308080027). Motorola noted in the brief it suffered harm at the hands of a covered-list company. “One covered equipment producer stole Motorola’s intellectual property, engaging in conduct so egregious that it resulted in a multi-hundred-million dollar civil-jury verdict against the producer as well as a criminal indictment of the producer and several of its employees, along with severe, ongoing irreparable harm,” Motorola said.

A grand jury returned an indictment in May 2021 listing 22 counts of trade secret theft against Hytera and seven of its engineers who developed digital mobile radios for Motorola in Malaysia starting in 2004 (see 2301260060). The engineers quit Motorola and joined Hytera in Shenzhen, and the government alleges they took Motorola’s trade secrets with them.