[Federal Register Volume 66, Number 226 (Friday, November 23, 2001)]
[Proposed Rules]
[Pages 58703-58706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29293]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 68

[WT Docket No. 01-309; FCC 01-320]


Hearing Aid Compatibility with Public Mobile Service Phones

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document initiates a proceeding in which the Commission 
considers whether to continue or eliminate the exemption of public 
mobile service phones from legislatively mandated hearing aid 
compatibility requirements.

DATES: Submit comments on or before January 11, 2002, and submit reply 
comments on or before February 11, 2002. Written comments on the 
proposed information collections are due January 22, 2002. Written 
comments on the proposed information collections must be submitted by 
the Office Management and Budget (OMB) on the proposed information 
collections on or before March 25, 2002.

ADDRESSES: Send comments and reply comments to the Office of the 
Secretary, Federal Communications Commission, Washington, DC 20554. In 
addition to filing comments with the Secretary, a copy of any comments 
on the information collections contained herein should be submitted to 
Judy Boley, Federal Communications Commission, Room 1-C804, 445 12th 
Street, SW., Washington, DC 20554, or via the Internet to 
[email protected], and to Ed Springer, OMB Desk Officer, 10236 NEOB, 725-
17th Street, NW., Washington, DC 20503 or via the Internet to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Mindy Littell, 202-418-1310 (voice) or 
(202) 418-1169 (TTY); or Dana Jackson, Consumer Information Bureau, 
Disabilities Rights Office, (202) 418-2517 (voice) or 418-7898 (TTY). 
For additional information concerning the information collections 
contained in this document, contact Judy Boley at 202-418-0214, or via 
the Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rule Making (NPRM) in WT Docket No. 01-309, FCC 01-320, 
adopted October 29, 2001, and released November 14, 2001. The complete 
text of the NPRM and Initial Regulatory Flexibility Analysis is 
available on the Commission's Internet site, at www.fcc.gov. It is also 
available for inspection and copying during normal business hours in 
the FCC Reference Information Center, Courtyard Level, 445 12th Street, 
SW., Washington, DC, and may be purchased from the Commission's copy 
contractor, Qualex International, CY-B402, 445 12th Street, SW., 
Washington, DC. Comments may be sent as an electronic file via the 
Internet to http://www.fcc.gov/e-file/ecfs.html, or by e-mail to 
[email protected].

Synopsis of the NPRM

    1. In this NPRM, the Commission reexamines the exemption, adopted 
pursuant to the direction of the Hearing Aid Compatibility Act of 1998 
(HAC Act), of public mobile service phones from the hearing aid 
compatibility requirements of that Act. This NPRM is adopted pursuant 
to the Commission's obligation under the HAC Act to assess periodically 
whether the exemptions from the hearing aid compatibility requirement 
continue to be warranted. Currently, many people who use hearing aids 
or who have cochlear implants have difficulty finding a digital 
wireless mobile telephone that functions effectively with those devices 
because of interference and compatibility problems. A Public Notice was 
issued in October 2000 seeking comment on a request from the Wireless 
Access Coalition that the Commission reopen the petition for rulemaking 
filed in 1995 on behalf of the HEAR-IT NOW Coalition, seeking to revoke 
the exemption for Person Communications Services (PCS) from the 
Commission's hearing aid compatibility requirements. The NPRM seeks 
comment to expand the record thus far in order to establish a reliable, 
extensive record on which to base its decision to continue, limit, or 
eliminate the PCS exemption.
    2. The HAC Act, as indicated in paragraphs 16 through 18 of the 
NPRM, mandates that once technical standards for hearing aid 
compatibility are established, covered telephones must provide internal 
means for effective use with hearing that are designed to be compatible 
with telephones that meet such technical standards. (47 U.S.C. 
610(b)(1). This portion of the statute appears to require, first, the 
establishment of technical standards governing wireless hearing aid 
compatibility. Therefore, the Commission tentatively concludes that, if 
it removes or limits the exemption for public mobile services, the 
industry will be required to develop technical standards for 
compatibility between covered wireless devices and hearing

[[Page 58704]]

aids. The Commission invites comment on this tentative conclusion.
    3. The statute also requires that once these standards are 
established, the wireless industry will be responsible for providing 
internal means for making the covered telephones compatible with 
hearing aids. The Commission seeks comment on possible interpretations 
of ``internal means.''
    4. Third, the HAC Act appears to limit the compatibility 
requirement to only ``hearing aids that are designed to be compatible 
with telephones that meet established technical standards for hearing 
aid compatibility.'' The Commission seeks comment on its assumption 
that this means that there may be some instances in which a hearing aid 
is not designed to be compatible with wireless telephones.
    5. The Commission also seeks comment on the four criteria specified 
by the HAC Act which, if satisfied, would compel the Commission to 
``revoke or otherwise limit'' the exemptions. Thus, the Commission 
seeks comment on whether these criteria are satisfied and on other more 
specific issues in this regard, as detailed in paragraphs 20 through 29 
of the NPRM. These four criteria are: (1) Whether revoking or limiting 
the exemptions is in the public interest; (2) whether the continuation 
of the exemptions without revocation or limitation would have an 
adverse effect on people with hearing disabilities; (3) whether 
compliance with the requirements of the hearing aid compatibility rule 
is technologically feasible for the telephones to which the exemption 
applies; and (4) whether compliance with the requirements of the rule 
would not increase costs to such an extent that the telephones to which 
the exemption applies could not be successfully marketed.
    6. Paragraphs 30 and 31 of the NPRM seek comment on the proper 
scope of the exemptions and on possible ways the Commission could limit 
the exemptions. Included in the discussion of implementation issues in 
paragraphs 32 through 35 of the NPRM, the Commission solicits comment 
on the possibility of a phased-in approach to implementation if the 
exemption is ultimately limited or revoked. Additionally, the 
Commission invites comment on ways in which it can stay informed on 
progress toward compliance by both the wireless industry and the 
hearing aid manufacturing industry. In this regard, the Commission 
suggests a quarterly report to help it monitor activities of the 
involved industries. Also, the Commission seeks comment on possible 
complaint procedures if the exemption is either limited or revoked.

Initial Regulatory Flexibility Analysis

    7. This is a summary of Initial Regulatory Flexibility Act Analysis 
(IRFA) for the NPRM. The full text of the IRFA may be found in Appendix 
B of the NPRM.
    8. As required by the Regulatory Flexibility Act of 1980 (RFA), 5 
U.S.C. 603, the Commission has prepared an IRFA of the possible 
significant economic impact on small entities of the policies and rules 
proposed in the NPRM. The Commission requests written public comment on 
the analysis. In order to fulfill the mandate of the Contract with 
America Advancement Act of 1996 regarding the Initial Regulatory 
Flexibility Analysis, the Commission asks a number of questions in the 
IRFA regarding the prevalence of small businesses in the affected 
industries.

Initial Regulatory Flexibility Analysis

    9. As required by Section 603 of the Regulatory Flexibility Act 
(RFA), the Commission has prepared this IRFA of the possible 
significant economic impact on small entities by the policies and rules 
proposed in this Notice of Proposed Rule Making NPRM. Written public 
comments are requested on this IRFA. Comments must be identified as 
responses to this IRFA and must be filed by the deadlines for comments 
on the NPRM provided in paragraph 38 of the NPRM. The Commission will 
send a copy of the NPRM, including this IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration (SBA).
A. Need for, and Objectives of, the Proposed Rules
    10. The Commission adopts the NPRM in order to examine the 
continued appropriateness of the exemption from the requirements of the 
Hearing Aid Compatibility Act (HAC Act) provided to public mobile 
services. The HAC Act mandates a periodic review of the exemption, and 
the Commission believes a proceeding should be initiated to consider 
whether it is appropriate to revoke or limit the exemption with respect 
to telephones used with public mobile services. This decision would be 
based on the four criteria established by the HAC Act that, if 
satisfied, would compel the Commission to revoke or otherwise limit the 
exemptions.
B. Legal Basis
    11. The proposed action is authorized under the Communications Act 
of 1934 as amended, sections 4(i), 303(r) and 710(a) and (b), 47 U.S.C. 
154(i), 303(r) and 610(a) and (b).
C. Description and Estimate of the Number of Small Entities To Which 
the Proposed Rules Will Apply
    12. The RFA directs agencies to provide a description of, and where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A ``small business concern'' is one which: (1) Is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the SBA.
    13. Neither the Commission nor the SBA has developed definitions 
for small providers of the specific industries affected. Therefore, 
throughout our analysis, unless otherwise indicated, the Commission 
uses the closest applicable definition under the SBA rules, the North 
American Industry Classification System (NAICS) standards for 
``Cellular and Other Wireless Telecommunications'' and ``Wired 
Telecommunications Carriers.'' According to this standard, a small 
entity is one with no more than 1,500 employees. To determine which of 
the affected entities in the affected services fit into the SBA 
definition of small business, the Commission has consistently referred 
to Table 5.3 in Trends in Telephone Service (Trends), a report 
published annually by the Commission's Common Carrier Bureau.
    14. Wireless Telephones Including Cellular, Personal Communications 
Service (PCS) and SMR Telephony Carriers. There are 806 entities in 
this category as estimated in Trends, and 323 such licensees in 
combination with their affiliates have 1,500 or fewer employees and 
thus qualify using the NAICS guide, as small businesses.
    15. Other Mobile Service Providers. Trends estimates that there are 
44 providers of other mobile services, and again using the NAICS 
standard, 43 providers of other mobile services utilize with their 
affiliates 1,500 or fewer employees and thus may be considered small 
entities.
    16. Hearing Aid Equipment Manufacturers. Hearing aid manufacturers 
are not regulated by the Commission, but may be affected by the 
proposed actions taken in this proceeding. In light of the potential

[[Page 58705]]

impact, we have chosen to include hearing aid manufacturers in this 
IRFA, although we are not required to do so. Hearing aid manufacturers 
are not licensed, but the Commission estimates that there are 
approximately 35 to 40 hearing aid manufacturers.
    17. Handset Manufacturers. The Commission does not license or 
regulate handset manufacturers. Therefore, no data exists indicating 
the number of entities manufacturing handsets. The applicable 
definition of small entity in this respect is the definition under the 
SBA rules applicable to Communications Services, Not Elsewhere 
Classified. This definition provides that a small entity is one with 
$11 million or less in annual receipts. According to Census Bureau 
data, there are 848 firms that fall under the category of 
Communications Services, Not Elsewhere Classified. Of those 
approximately 775 reported annual receipts of $11 million or less and 
qualify as small entities. Thus, the Commission, for purposes of this 
analysis estimates that no more than 775 handset manufacturers qualify 
as small entities.
D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements
    18. In the event that the HAC Act exemption is revoked, telephones 
used with public mobile services will be required to be compatible with 
hearing aids and cochlear implants. While it is possible that, in this 
proceeding, the scope of the exemption may be fashioned so that not all 
telephones used with public mobile services will be subject to the 
hearing aid compatibility requirements, for purposes of this analysis 
we will assume the broadest possible impact. The NPRM first seeks 
comment on ways in which the Commission can stay informed on progress 
toward compliance by both the wireless industry and the hearing aid 
manufacturing industry, such as through a quarterly reporting 
requirement. Also, the NPRM tentatively concludes that, in the event 
the Commission removes or limits the exemption for public mobile 
services, the industry will be required to develop technical standards 
for compatibility between covered wireless devices and hearing aids. 
One implementation approach proposed by the Cellular Telecommunications 
& Industry Association, provides that wireless devices would be 
categorized and ``paired'' with a categorized hearing aid to enable the 
use of the two devices together. In the event that the Commission 
decides to limit or revoke the exemption, and it determines that the 
CTIA plan is the appropriate mechanism to satisfy the requirements of 
the HAC Act, the NPRM seeks comment on the series of steps CTIA asserts 
will be necessary before such a pairing approach can be implemented, 
part of which necessitates an educational effort to inform consumers 
and retail sales personnel about the plan. Finally, if the exemption is 
either removed or limited, complaint procedures would be adopted and 
the affected licensees would need to participate in the complaint 
process.
E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered
    19. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    20. The NPRM seeks comment on a number of matters related to 
implementation of hearing aid compatibility in the wireless devices 
used with public mobile services, all of which could affect small 
entities. We note that, to the extent that manufacturers would make 
changes to telephone handsets to enable carriers subject to the hearing 
aid compatibility requirements to comply with those requirements, in 
many cases, those updated handsets may be usable by smaller carriers as 
well as larger carriers. The two most obvious alternatives in this 
proceeding are whether to keep the exemption or whether to eliminate or 
limit the exemption. Depending on the final action taken, small 
entities could be affected. The NPRM seeks comment on the best way to 
implement the hearing aid compatibility requirements, and indicates 
that a phased-in approach might be a good way to minimize burdens on 
all carriers, including small entities. Because of the impact of the 
rule on people with hearing disabilities, the Commission has little 
flexibility in terms of providing a less burdensome approach for small 
entities. The incompatibility between hearing aids and wireless devices 
affects all persons with hearing disabilities in the same way 
regardless of the size of the carrier or manufacturer. In paragraph 26, 
the NPRM seeks comment on whether the ``pairing'' approach suggested by 
CTIA, along with its educational component, would be a satisfactory 
solution to the incompatibility problem. The NPRM, in paragraph 31, 
also asks whether the exemptions should be limited with respect to 
fewer than all telephones used with public mobile services. The 
Commission invites comment on the impact on small entities of the 
alternatives here suggested. The Commission further invites interested 
parties to offer additional alternatives.
    21. In paragraph 32, the NPRM seeks comment on whether a reporting 
requirement is needed to assist the Commission in monitoring the 
industry's progress toward implementation of hearing aid compatibility 
in the covered wireless devices. Commenters are encouraged to provide 
input on the content and frequency of these reports so as to facilitate 
monitoring and the exchange of information between the wireless 
industry and the hearing aid manufacturing industry. Because of the 
compelling public interest in making public service telephones 
accessible to persons with hearing disabilities, the Commission 
proposes to require quarterly reports by affected entities to ensure 
that progress is being made toward achieving hearing aid compatibility. 
Paragraphs 28 and 29 of the NPRM seek comment on how to minimize the 
financial burden on those currently exempt from hearing aid 
compatibility if the exemptions are limited or removed.
F. Federal Rules That May Overlap, Duplicate, or Conflict With the 
Proposed Rules
    22. None.

Ex Parte Presentations

    23. For purposes of this permit-but-disclose notice and comment 
rulemaking proceeding, members of the public are advised that ex parte 
presentations are permitted, except during the Sunshine Agenda period, 
provided they are disclosed under the Commission's Rules. (See 
generally 47 CFR 1.1202, 1.1203, 1.1206((a).)

Pleading Dates

    24. Pursuant to applicable procedures set forth in Secs. 1.415 and 
1.419 of the Commission's rules, interested parties may file comments 
on or before January 11, 2002, and reply comments on or before February 
11, 2002. All relevant and timely comments will be

[[Page 58706]]

considered by the Commission before final action is taken in this 
proceeding. To file formally in this proceeding, interested parties 
must file an original and four copies of all comments, reply comments, 
and supporting comments. If interested parties want each Commissioner 
to receive a personal copy of their comments, they must file an 
original plus nine copies. Interested parties should send comments and 
reply comments to the Office of the Secretary, Federal Communications 
Commission, Room TW-A325, 445 Twelfth Street, SW., Washington, DC 
20554, with a copy to Mindy Littell, Policy Division, Wireless 
Telecommunications Bureau, 445 Twelfth Street, SW., Washington, DC 
20554.
    25. Comments may also be filed using the Commission's Electronic 
Comment Filing System (ECFS). Comments filed through the ECFS can be 
sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, only one copy of an electronic submission 
must be filed. In completing the transmittal screen, commenters should 
include their full name, Postal Service mailing address, and the 
applicable docket or rulemaking number. Parties may also submit an 
electronic comment by Internet E-Mail. To obtain filing instructions 
for E-Mail comments, commenters should send an e-mail to [email protected], 
and should include the following words in the body of the message, 
``get form your E-Mail address>.'' A sample form and directions will be 
sent in reply.
    26. Comments and reply comments will be available for public 
inspection during regular business hours at the FCC Reference Center, 
Room CY-A257, at the Federal Communications Commission, 445 Twelfth 
Street, SW., Washington, DC 20554. Copies of comments and reply 
comments are available through the Commission's duplicating contractor: 
Qualex International, CY-B402, 445 12th Street, SW., Washington, DC 
20054, (202) 863-2893, e-mail [email protected].

Ordering Clauses

    27. Authority for the issuance of this Notice of Proposed Rule 
Making is contained in sections 4(i), 303(r) and 710(a) and (b) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r) and 
610(a) and (b).
    28. The Commission's Consumer Information Bureau, Reference 
Information Center, shall send a copy of this Notice of Proposed Rule 
Making, including the Initial Regulatory Flexibility Analysis, to the 
Chief Counsel for Advocacy of the Small Business Administration.

Paperwork Reduction Analysis

    33. This NPRM contains proposed information collections. As part of 
our continuing effort to reduce paperwork burdens, the Commission 
invites the general public and the Office of Management and Budget 
(OMB) to take this opportunity to comment on the information 
collections contained in this NPRM, as required by the Paperwork 
Reduction Act of 1995, Public Law 104-13. Public and agency comments 
are due January 22, 2002. OMB comments are due March 25, 2002. Comments 
should address: (1) Whether the proposed collection of information is 
necessary for the proper performance of the functions of the 
Commission, including whether the information shall have practical 
utility; (2) the accuracy of the Commission's burden estimates; (3) 
ways to enhance the quality, utility, and clarity of the information 
collected; and (4) ways to minimize the burden of the collection of 
information on the respondents, including the use of automated 
collection techniques or other forms of information technology.
    OMB Approval Number: 3060-XXXX.
    Title: Exemption of Public Mobile Service Phone from the Hearing 
Aid Compatibility Act: Notice of Proposed Rulemaking (NPRM).
    Form No.: N.A.
    Type of Review: New collection.
    Respondents: Individuals or households; business or other for 
profit.
    Number of Respondents: 965 respondents; 3,860 responses.
    Estimated Time Per Response: 2 to 8 hours.
    Frequency of Response: On occasion and quarterly reporting 
requirement and third party disclosure requirement.
    Total Annual Burden: 20,265 hours.
    Total Annual Cost Burden: N/A.
    Needs and Uses: The reporting requirement, if adopted, will be used 
by the Commission to monitor wireless carriers and handset and hearing 
aid manufacturers progress towards compliance with hearing aid 
compatibility requirements, if the current exemption is limited or 
revoked. Technical standards are mandated by the Hearing Aid 
Compatibility Act of 1988, if the Commission decides to limit or revoke 
the current exemption, and will be used as a guide to compliance with 
hearing aid compatibility requirements.

List of Subjects in 47 CFR Part 68

    Communications common carriers, Communications equipment.

    Federal Communications Commission.
William F. Caton,
Deputy Secretary.
[FR Doc. 01-29293 Filed 11-21-01; 8:45 am]
BILLING CODE 6712-01-P