Don't quote me on that... although I believe this is how things are. I have not done it myself. Only read about it (year(s)? ago when this was all going down).
There was some acknowledgement / agreement that as long as the default
settings were within the FCC regulations there was no problem with the source
being publicly available. I think having to modify the driver/firmware and
then compile it is non-trivial for an end-user. Even for a developer with the
knowledge I'd think it is fair to say it is not quite trivial. The way it is
distributed a developer has to go through the source code, make some changes,
and compile, before the device can be used outside of the FCC regulations.
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