[Federal Register Volume 68, Number 179 (Tuesday, September 16, 2003)]
[Rules and Regulations]
[Pages 54173-54176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23527]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2 and 20

[WT Docket No. 01-309; FCC 03-168]


Hearing Aid-Compatible Telephones

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission modifies the exemption for 
wireless phones under the Hearing Aid Compatibility Act of 1988 (HAC 
Act) to require that digital wireless phones be capable of being 
effectively used with hearing aids. It finds that modifying the 
exemption will extend the benefits of wireless telecommunications to 
individuals with hearing disabilities--including emergency, business, 
and social communications--thereby increasing the value of the wireless 
network for all Americans.

DATES: Effective November 17, 2003.

FOR FURTHER INFORMATION CONTACT: Mindy Littell, Policy Division, 
Wireless Telecommunications Bureau, at (202) 418-0789 or Gregory Guice, 
Policy Division, Wireless Telecommunications Bureau, at (202) 418-0095.

SUPPLEMENTARY INFORMATION: This is a summary of the Report and Order, 
adopted on July 10, 2003, and released on August 14, 2003. The full 
text of the Report and Order is available for public inspection and 
copying during regular business hours at the FCC Reference Information 
Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 
20554. This document may also be purchased from the Commission's 
duplicating contractor, Qualex International, Portals II, 445 12th 
Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-
2893, facsimile 202-863-2898, or via e-mail [email protected].

Overview

    1. In the Report and Order, the Commission modifies the exemption 
for wireless phones under the Hearing Aid Compatibility Act of 1988 
(HAC Act) to require that digital wireless phones be capable of being 
effectively used with hearing aids. It finds that modifying the 
exemption will extend the benefits of wireless telecommunications to 
individuals with hearing disabilities--including emergency, business, 
and social communications--thereby increasing the value of the wireless 
network for all Americans.
    2. The Commission takes these actions to facilitate the 
Congressional goal of ensuring access to telecommunications services 
for individuals with hearing disabilities. In light of the rising 
number of calls to emergency services placed by wireless phone users, 
preserving access to wireless telecommunications for individuals with 
hearing disabilities is critical. In addition to the public safety 
benefits, these actions will also extend to individuals with hearing 
disabilities the social, professional, and convenience benefits offered 
by wireless telecommunications as well. In light of our society's 
increased reliance on wireless phones and the growing trend among 
wireless carriers to move away from analog services in favor of more 
efficient, feature-rich digital services, these steps will ensure that 
individuals with hearing disabilities continue to enjoy access to 
wireless telecommunications devices and services.

Final Regulatory Flexibility Analysis

    3. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the Sec.  68.4(a) of the Commission's Rules Governing 
Hearing Aid-Compatible Telephones Notice of Proposed Rulemaking (NPRM), 
66 FR 58703 (November 23, 2001). The Commission sought written public 
comment on the proposal in the NPRM, including comment on the IRFA. 
This present Final Regulatory Flexibility Analysis (FRFA) conforms to 
the RFA.

A. Need for, and Objectives of, Adopted Rules

    4. In the Report and Order, the Commission modifies the exemption 
for wireless phones under the Hearing Aid Compatibility Act of 1988 
(``HAC Act'') to require digital wireless phones to provide for 
effective use with hearing aids. We find that modifying the exemption 
in the manner described in the Report and Order will extend the 
benefits of wireless telecommunication to persons with hearing 
disabilities, thereby increasing the value of the wireless network for 
all Americans. The Commission took the following actions:

    i. Adopts certain performance levels set forth in a technical 
standard established by the American National Standards Institute 
(ANSI) as the applicable technical standard for compatibility of 
digital wireless phones with hearing aids;
    ii. requires certain digital wireless phone models to provide 
reduced radio frequency (RF) interference (i.e., meet a ``U3'' 
rating under the ANSI standard), and requires certain digital 
wireless phone models to provide telecoil coupling capability (i.e. 
meet a ``U3T'' rating under the ANSI standard);
    iii. requires, within two years, each digital wireless phone 
manufacturer to make available to carriers and require each carrier 
providing digital wireless services to make available to consumers 
at least two handset models for each air interface it offers which 
provide reduced RF emissions (``U3'' rating);
    iv. requires each Tier I wireless carrier providing digital 
wireless services to make available to consumers within two years at 
least two handset models for each air interface it offers to provide 
reduced RF emissions (``U3'' rating) or 25 percent of the total 
number of phone models it offers, whichever is greater;
    v. requires, within three years, each digital wireless phone 
manufacturer to make available to carriers and require each carrier 
providing digital wireless services to make available to consumers 
at least two handset models for each air interface it offers which 
provide telecoil coupling (``U3T'' rating);
    vi. adopts a de minimis exception for certain digital wireless 
phone manufacturers and carriers;
    vii. encourages digital wireless phone manufacturers and service 
providers to offer at least one compliant handset that is a lower-
priced model and one that has higher-end features;
    viii. requires 50 percent of all digital wireless phone models 
offered by a manufacturer or carrier to be compliant with the 
reduced RF emissions requirements by February 18, 2008;
    ix. requires wireless carriers and digital wireless handset 
manufacturers to report semiannually (every six months) on efforts 
toward compliance during the first three years, then annually 
thereafter through the fifth year of implementation;
    x. requires manufacturers to label packages containing compliant 
handsets and to make information available in the package or product 
manual, and require service providers to make available to consumers 
the performance ratings of compliant phones;
    xi. commits the Commission staff to deliver a report to the 
Commission shortly after three years from the effective date of this 
Order to examine the impact of these requirements, and which will 
form the basis for the Commission to initiate a proceeding soon 
after the report is issued to evaluate whether to increase or 
decrease the 2008 requirement to make 50 percent of phone models 
with

[[Page 54174]]

reduced RF emissions, whether to adopt implementation benchmarks 
beyond 2008, and whether to otherwise modify the implementation 
requirements;
    xii. encourages hearing aid manufacturers to label their pre-
customization products according to the ANSI standard; and
    xiii. denies the petition of Myers Johnson, Inc., for revision 
of Sec.  24.232 as it relates to directional wireless phone 
antennas.

    5. The Commission takes these actions to ensure that that the 
Congressional goal of ensuring access to telecommunications services 
for persons with hearing disabilities is met. In addition, in light of 
our society's increased reliance on wireless phones and the growing 
trend among wireless carriers to move away from analog services in 
favor of more efficient, feature-rich digital services, these steps 
will ensure that people with hearing disabilities continue to enjoy 
access to wireless telecommunications devices and services.

B. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA

    6. We received no comments directly in response to the IRFA in this 
proceeding. The Commission, however, considered the potential impact of 
its rules on smaller handset manufacturers and service providers. To 
ensure that the rules have a minimal impact on these entities, the 
Commission, in recognition of the adverse effect its HAC compatibility 
percentage requirements could have, modified the requirement for 
manufacturers and service providers. Therefore, the requirement that 
manufacturers and service providers must make 50 percent of their 
handsets compliant with the reduced RF emissions level (``U3'') was 
modified to provide that, by February 18, 2008, 50 percent of all 
phones offered by the entity in the U.S. market must be compliant, or 
two phones per air interface offered, whichever number of handsets is 
greater.

C. Description and Estimate of the Number of Small Entities to Which 
the Adopted Rules Will Apply

    7. 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 adopted 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 section 3 of the 
Small Business Act. Under the Small business Act, a ``small business 
concern'' is one that: (i) Is independently owned and operated; (ii) is 
not dominant in its field of operation; and (iii) satisfies any 
additional criteria established by the Small Business Administration 
(SBA). A small organization is generally ``any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.''
    8. Cellular and Other Wireless Telecommunications or Paging. The 
SBA has developed a size standard for small businesses within the two 
separate categories of Cellular and Other Wireless Telecommunications 
or Paging. Under that standard, such a business is small if it has 
1,500 or fewer employees. According to the FCC's Telephone Trends 
Report data, 1,761 companies reported that they were engaged in the 
provision of wireless service. Of these 1,761 companies, an estimated 
1,175 have 1,500 or fewer employees and 586 have more than 1,500 
employees. Consequently, we estimate that a majority of small wireless 
service providers may be affected by the rules.
    9. Wireless Communications Equipment Manufacturers. The SBA has 
established a small business size standard for radio and television 
broadcasting and wireless communications equipment manufacturing. Under 
the standard, firms are considered small if they have 750 or fewer 
employees. Census Bureau data for 1997 indicates that, for that year, 
there were a total of 1,215 establishments in this category. Of those, 
there were 1,150 that had employment under 500, and an additional 37 
that had employment of 500 to 999. The percentage of wireless equipment 
manufacturers in this category is approximately 61.35%, so the 
Commission estimates that the number of wireless equipment 
manufacturers with employment under 500 was actually closer to 706, 
with an additional 23 establishments having employment of between 500 
and 999. The Commission estimates that the great majority of wireless 
communications equipment manufacturers are small businesses.

D. Description of Reporting, Recordkeeping, and Other Compliance 
Requirements for Small Entities

    10. The reporting, recordkeeping, or other compliance requirements 
adopted require that any and all of the affected entities to which the 
Commission's adopted rules apply must comply with the Commission's 
hearing aid compatibility rules adopted in the Report and Order. The 
Commission has detailed the timeframes for compliance and was mindful 
of the needs of manufacturers and service providers. The timeframes, 
therefore, reflect the Commission's balancing of the competing 
interests. We ensure that access to wireless phones for persons with 
hearing disabilities is maintained, and also to ensure that 
manufacturers and service providers are afforded a reasonable amount of 
time within which to comply with our rules.
    11. In the Report and Order, the Commission requires wireless 
carriers and handset manufacturers to report every six months on 
efforts toward compliance with the requirements of the Report and Order 
during the first three years, then annually thereafter through the 
fifth year of implementation. These reports will serve dual purposes: 
They will assist us in monitoring the progress of implementation, and 
they will provide valuable information to the public concerning 
compatible handsets. The reporting requirement will extend through the 
end of the fifth year following the effective date of the Report and 
Order to assist in verifying compliance with the requirement to make at 
least 50 percent of all phone models offered compatible by February 18, 
2008. Digital wireless phone manufacturers and service providers may 
submit joint reports, if they wish, in order to minimize the reporting 
burden. The reports should describe manufacturer and carrier efforts 
aimed at complying with the requirements of the Report and Order. 
Specifically, the reports should include (i) digital wireless phones 
tested; (ii) laboratory used; (iii) test results for each phone tested; 
(iv) identification of compliant phone models and ratings according to 
ANSI C63.19; (v) report on the status of product labeling; (vi) report 
on outreach efforts; (vii) information related to retail availability 
of compliant phones; (viii) information related to incorporating 
hearing aid compatibility features into newer models of digital 
wireless phones; (ix) any activities related to ANSI C63.19 or other 
standards work intended to promote compliance with the Report and 
Order; (x) total numbers of compliant and non-compliant phone models 
offered as of the time of the report; and (xi) any ongoing efforts for 
interoperability testing with hearing aid devices.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    12. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its adopted

[[Page 54175]]

approach, which may include the following four alternatives (among 
others): (i) The establishment of differing compliance or reporting 
requirements or timetables that take into account the resources 
available to small entities; (ii) the clarification, consolidation, or 
simplification of compliance or reporting requirements under the rule 
for small entities; (iii) the use of performance, rather than design, 
standards; and (iv) an exemption from coverage of the rule, or any part 
thereof, for small entities.
    13. The critical nature of hearing aid compatibility with wireless 
phones limits the Commission's ability to provide small manufacturers 
of wireless handsets and wireless service providers with a 
substantially less burdensome set of regulations than that placed on 
large entities. In the Report and Order, the Commission concludes that 
continuing the exemption afforded wireless phones under the HAC Act 
would have an adverse effect on individuals with hearing disabilities. 
Consumers who use hearing aids or cochlear implants indicate they have 
had difficulty finding either wireless phones they can use without 
suffering from annoying and sometimes painful interference, or without 
resorting to expensive and cumbersome external attachments. Consumers 
state that it is becoming very difficult to find analog wireless phones 
and services, and they are unable to use most digital wireless phones 
because of the resulting interference. By not being able to take 
advantage of most newer, digital wireless phones and services, hearing 
aid users assert they cannot take advantage of the attractive pricing 
and service plans available to other consumers, many of which include 
free or reduced-price phones, because the phones offered do not work 
with their hearing aids. Some consumers point out that their lack of 
ability to use a digital wireless phone causes them problems in their 
employment, particularly since many employers now rely on digital 
phones and services to stay in contact with employees in the field. A 
few consumers reported difficulty in finding a phone that works with 
their hearing aids because they were unable to test the phone before 
purchasing it. Some consumers expressed a desire to use a wireless 
phone for emergency use while away from home. However, because they are 
unable to find one they can use, they are forced to accept greater 
risks than non-hearing aid users since they are unable to call 911 even 
if they have access to a digital wireless phone.
    14. In the Report and Order, however, the Commission recognizes 
that certain manufacturers and service providers may have only a small 
presence in the market. For those manufacturers and service providers, 
the Commission adopted a de minimis exception. Specifically, if a 
manufacturer or carrier offers two or fewer digital wireless handset 
models in the U.S., it is exempt from the compatibility requirements in 
this Report and Order. If a manufacturer or carrier offers three 
digital wireless handset models, it must make at least one compliant 
phone model available in two years. Furthermore, to the extent there 
are digital wireless providers that obtain handsets only from 
manufacturers that offer two or fewer digital wireless phone models in 
the U.S., the service provider would likewise be exempt from the rules. 
Similarly, if a service provider obtains handsets only from 
manufacturers that offer three digital wireless phone models in the 
U.S., that service provider would only have to offer one compliant 
handset model.
    15. In addition, in considering the possible impact of our rules on 
the many small business owners that act as agents for service 
providers, the Commission crafted its labeling rules to allow these 
entities flexibility in how they convey the information persons with 
hearing disabilities will need to make an informed purchase.

F. Report to Congress

    16. The Commission will send a copy of the Report and Order, 
including this FRFA, in a report to be sent to Congress pursuant to the 
Congressional Review Act. In addition, the Commission will send a copy 
of the Report and Order, including the FRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration.

G. Effective Date of Adopted Rules

    17. Pursuant to 5 U.S.C. 553(d), the rules adopted herein shall 
become effective November 17, 2003.

Ordering Clauses

    18. Pursuant to the authority of sections 1, 4(i), 7, 10, 201, 202, 
208, 214, 301, 303, 308, 309(j), 310, and 710 of the Communications Act 
of 1934, as amended, 47 U.S.C. 151, 154(i), 157, 160, 201, 202, 208, 
214, 301, 303, 308, 309(j), 310, and 610, the rule changes are amended 
as set forth below and shall become effective November 17, 2003.

List of Subjects in 47 CFR Parts 2 and 20

    Communications common carriers.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR Parts 2 and 20 as follows:

PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL 
RULES AND REGULATIONS

0
1. The authority citation for part 2 continues to read as follows:

    Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise 
noted.

0
2. Amend Sec.  2.1033 by adding paragraph (d) to read as follows:


Sec.  2.1033  Application for certification.

* * * * *
    (d) Applications for certification of equipment operating under 
part 20, that a manufacturer is seeking to certify as hearing aid 
compatible, as set forth in Sec.  20.19 of that part, shall include a 
statement indicating compliance with the test requirements of Sec.  
20.19 and indicating the appropriate U-rating for the equipment. The 
manufacturer of the equipment shall be responsible for maintaining the 
test results.

PART 20--COMMERCIAL MOBILE RADIO SERVICES

0
3. The authority citation for part 20 continues to read as follows:

    Authority: 47 U.S.C. 154, 160, 251-254, 303, and 332 unless 
otherwise noted.

0
4. Amend part 20 by adding Sec.  20.19 to read as follows:


Sec.  20.19  Hearing aid-compatible mobile handsets.

    (a) Scope of section. This section is applicable to providers of 
Broadband Personal Communications Services (part 24, subpart E of this 
chapter), Cellular Radio Telephone Service (part 22, subpart H of this 
chapter), and Specialized Mobile Radio Services in the 800 MHz and 900 
MHz bands (included in part 90, subpart S of this chapter) if such 
providers offer real-time, two-way switched voice or data service that 
is interconnected with the public switched network and utilizes an in-
network switching facility that enables the provider to reuse 
frequencies and accomplish seamless hand-offs of subscriber calls. This 
section also applies to the manufacturers of the wireless phones used 
in delivery of these services.
    (b) Technical standard for hearing aid compatibility. A wireless 
phone used for

[[Page 54176]]

public mobile radio services is hearing aid compatible for the purposes 
of this section if it meets, at a minimum:
    (1) For radio frequency interference: U3 as set forth in the 
standard document ANSI C63.19-2001 ``American National Standard for 
Methods of Measurement of Compatibility between Wireless Communication 
Devices and Hearing Aids, ANSI C63.19-2001'' (published October 8, 
2001--available for purchase from the American National Standards 
Institute); and
    (2) For inductive coupling: U3T rating as set forth in the standard 
document ANSI C63.19-2001 ``American National Standard for Methods of 
Measurement of Compatibility between Wireless Communication Devices and 
Hearing Aids, ANSI C63.19-2001'' (published October 8, 2001--available 
for purchase from the American National Standards Institute).
    (3) Manufacturers must certify compliance with the test 
requirements and indicate the appropriate U-rating for the wireless 
phone as set forth in Sec.  2.1033(d) of this chapter.
    (c) Phase-in for public mobile service handsets concerning radio 
frequency interference.
    (1) Each manufacturer of handsets used with public mobile services 
for use in the United States or imported for use in the United States 
must:
    (i) Offer to service providers at least two handset models for each 
air interface offered that comply with Sec.  20.19(b)(1) by September 
16, 2005; and
    (ii) Ensure at least 50 percent of their handset offerings for each 
air interface offered comply with Sec.  20.19(b)(1) by February 18, 
2008.
    (2) And each provider of public mobile service must:
    (i) Include in their handset offerings at least two handset models 
per air interface that comply with Sec.  20.19(b)(1) by September 16, 
2005 and make available in each retail store owned or operated by the 
provider all of these handset models for consumers to test in the 
store; and
    (ii) Ensure that at least 50 percent of their handset models for 
each air interface comply with Sec.  20.19(b)(1) by February 18, 2008, 
calculated based on the total number of unique digital wireless handset 
models the carrier offers nationwide.
    (3) Each Tier I carrier must:
    (i) Include in their handset offerings at least two handset models 
or 25 percent of the total number of unique digital wireless handset 
models offered by the carrier nationwide (calculated based on the total 
number of unique digital wireless handset models the carrier offers 
nationwide), whichever is greater, for each air interface that comply 
with Sec.  20.19(b)(1) by September 16, 2005, and make available in 
each retail store owned or operated by the carrier all of these handset 
models for consumers to test in the store; and
    (ii) Ensure that at least 50 percent of their handset models for 
each air interface comply with Sec.  20.19(b)(1) by February 18, 2008, 
calculated based on the total number of unique digital wireless phone 
models the carrier offers nationwide.
    (d) Phase-in for public mobile service handsets concerning 
inductive coupling.
    (1) Each manufacturer of handsets used with public mobile services 
for use in the United Sates or imported for use in the United States 
must offer to service providers at least two handset models for each 
air interface offered that comply with Sec.  20.19(b)(2) by September 
18, 2006.
    (2) And each provider of public mobile service must include in 
their handset offerings at least two handset models for each air 
interface that comply with Sec.  20.19(b)(2) by September 18, 2006 and 
make available in each retail store owned or operated by the provider 
all of these handset models for consumers to test in the store.
    (e) De minimis exception.
    (1) Manufacturers or mobile service providers that offer two or 
fewer digital wireless handsets in the U.S. are exempt from the 
requirements of this section. For mobile service providers that obtain 
handsets only from manufacturers that offer two or fewer digital 
wireless phone models in the U.S., the service provider would likewise 
be exempt from the requirements of this section.
    (2) Manufacturers or mobile service providers that offer three 
digital wireless handset models, must make at least one compliant phone 
model in two years. Mobile service providers that obtain handsets only 
from manufacturers that offer three digital wireless phone models in 
the U.S. would be required to offer at least one compliant handset 
model.
    (f) Labeling requirements. Handsets used with public mobile 
services that are hearing aid compatible, as defined in Sec.  20.19(b) 
of this chapter, shall clearly display the U-rating, as defined in 
20.19(b)(1), (2) on the packaging material of the handset. An 
explanation of the ANSI C63.19-2001 U-rating system shall also be 
included in the owner's manual or as an insert in the packaging 
material for the handset.
    (g) Enforcement. Enforcement of this section is hereby delegated to 
those states which adopt this section and provide for enforcement. The 
procedures followed by a state to enforce this section shall provide a 
30-day period after a complaint is filed, during which time state 
personnel shall attempt to resolve a dispute on an informal basis. If a 
state has not adopted or incorporated this section, or failed to act 
within 6 months from the filing of a complaint with the state public 
utility commission, the Commission will accept such complaints. A 
written notification to the complainant that the state believes action 
is unwarranted is not a failure to act. The procedures set forth in 
part 68, subpart E of this chapter are to be followed.

[FR Doc. 03-23527 Filed 9-15-03; 8:45 am]
BILLING CODE 6712-01-U