It hinges on the interpretation of the word "capable"? That the hardware can do it doesn't always mean the radio as a system is "capable" of it. For example,

It hinges on the interpretation of the word "capable"? That the hardware can do it doesn't always mean the radio as a system is "capable" of it. For example, the firmware may contain a list of banned frequencies or bands. From a commercial perspective, my understanding is that the FCC is okay with radio hardware being widely tuneable, as long as the end user never sees the widely tuneable characteristics and has no way to use the device outside the defined frequencies. I'm guessing the FCC has yet to grok what "capable" means when it is a non-proprietary system where there is no manufacturer to act as gatekeeper? My guess is that the FCC would consider a radio not to be capable if it required a firmware reflash, or some other major action on a workbench, to transmit in a band, meaning it is impossible to accidentally change bands or to do so in the field. Even if the FCC disagreed that firmware can render a radio non-capable, a bandpass filter, counted as being an integral part of the radio would do so? From my listening of the conversation and reading the article, the above is consistent with what the FCC said, if you use the above defintion of "capable".