[Federal Register Volume 70, Number 143 (Wednesday, July 27, 2005)]
[Proposed Rules]
[Pages 43386-43389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14614]


-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 20

[WT Docket No. 01-309; FCC 05-122]


Hearing Aid-Compatible Telephones

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: In an Order on Reconsideration, the Commission granted in part 
and denied in part the petitions for reconsideration of the Hearing Aid 
Compatibility Order, which lifted the blanket exemption for digital 
wireless telephones under the Hearing Aid Compatibility Act of 1988 
(HAC Act). In this document, in order to ensure that the Commission 
fully effectuates Congress' requirement that it ``establish such 
regulations as are necessary to ensure reasonable access to telephone 
service by persons with impaired hearing,'' the Commission seeks 
comment on two issues related to the Commission's hearing aid 
compatibility rules.

DATES: Submit comments on or before September 26, 2005 and reply 
comments are due on or before October 25, 2005.

ADDRESSES: You may submit comments, identified by WT Docket No. 01-309; 
FCC 05-122, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: [email protected] or phone 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document. Federal Communications 
Commission, 445 12th Street, SW., Washington, DC 20554. See 
SUPPLEMENTARY INFORMATION for filing instructions.

FOR FURTHER INFORMATION CONTACT: Andra Cunningham, 
[email protected], Public Safety and Critical Infrastructure 
Division, Wireless Telecommunications Bureau, (202) 418-1630 or TTY 
(202) 418-7233.

SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communication Commission's Further Notice of Proposed Rulemaking, FCC 
05-122, adopted on June 9, 2005, and released on June 21, 2005. The 
full text of this document is available for inspection and copying 
during normal business hours in the FCC Reference Information Center, 
445 12th Street, SW., Washington, DC 20554. The complete text may be 
purchased from the Commission's copy contractor, Best Copy and 
Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 
20554. The full text may also be downloaded at: http://www.fcc.gov. To 
request materials in accessible formats for people with disabilities 
(braille, large print, electronic files, audio format), send an e-mail 
to [email protected] or call the Consumer & Governmental Affairs Bureau at 
202-418-0530 (voice), 202-418-0432 (tty).
    1. In the Order on Reconsideration, we clarified that the live, in-
store consumer testing requirement applies to all retail outlets owned 
or operated by wireless carriers or service providers. In addition, we 
clarified that the de minimis exception, which exempts from the hearing 
aid compatibility requirements wireless carriers, service providers and 
handset manufacturers that offer two or fewer digital wireless handset 
models, applies on a per air interface basis, rather than across an 
entire product line. As set forth below, we seek comment on: (1) 
Extending the live, in-store consumer testing requirement to retail 
outlets that are not directly owned or operated by wireless carriers or 
service providers, and (2) whether to narrow the de minimis exception.
    2. First, we seek comment on extending the live, in-store consumer 
testing requirement to retail outlets that are not directly owned or 
operated by wireless carriers or service providers. Although we 
clarified today that all retail outlets owned or operated by wireless 
carriers or service providers must make live, in-store consumer testing 
available, we are concerned that limiting this requirement to these 
retail outlets may prevent us from fully effectuating Congress' 
requirement that we ``establish such regulations as are necessary to 
ensure reasonable access to telephone service by persons with impaired 
hearing.'' Moreover, in its petition, the Cellular Telecommunications 
and Internet Association (CTIA) asks the Commission to ``clarify 
whether the [Commission] has legal authority and the scope of that 
authority to require retail stores to comply'' with the live, in-store 
testing requirement. Accordingly, we seek comment on this CTIA request. 
If we find that we have the authority explicitly to extend our hearing 
aid compatibility rules to independent retailers, should we do so?
    3. We also seek comment on the impact that this proposal would have 
on small business retailers and independent retailers. Would extending 
this requirement create a more level playing field for different types 
of retailers? Or, would extending this requirement create an 
unacceptable burden for independent retailers, small business 
retailers, or both? For instance, will small business retailers have 
the physical space to fulfill this requirement? Do small business 
retailers have the sales volume to support implementation of this 
requirement? We encourage commenters to be specific as to the impact of 
this proposed modification.
    4. We note that the relationship between independent retailers, 
whether large or small, and wireless carriers and service providers 
could have an impact on enforcement of a live, in-store consumer 
testing requirement. We further note that independent retailers act as 
agents for wireless carriers and service providers in selling wireless 
services. As section 217 of the Communications Act explicitly makes 
carriers responsible for the acts, omissions, and failures of their 
agents, among others, we seek comment on the nature of any contract 
provisions that would require the retailers to provide live, in-store 
consumer testing. Further, because section 217 does not apply to 
service providers who are not carriers, we seek comment on, whether 
under provisions of general agency law and the HAC Act, we could 
require those service providers, in their contracts with retailers 
selling their wireless services, to require live, in-store consumer 
testing. We also seek comment on the extent to which carriers and 
service providers should be expected to monitor and enforce such 
contract provisions regarding this testing requirement.
    5. Finally, we seek comment on how many small business and 
independent retailers have adopted the fourteen-day trial period for 
new services set forth in the CTIA Voluntary Consumer Information Code 
(CTIA Code). Which retailers are bound by the CTIA Code

[[Page 43387]]

and offer a fourteen-day trial period? Are there major independent 
retailers that do not have a two week return policy? What percentage of 
carriers' service plans is purchased through independent retailers? Do 
manufacturers own any retail stores? If so, what percentage of 
manufacturers' handsets is purchased through an independent retailer? 
Are independent retailers currently preparing to comport with our 
hearing aid compatibility rules, specifically with our rules on the 
number of compliant handsets that must be offered for sale and our 
live, in-store consumer testing rules? Relatedly, we also seek comment 
on how parties envision consumers with hearing disabilities will be 
impacted in instances where independent retailers do not provide live, 
in-store testing or a thirty-day trial period, which the Commission 
encourages. If some independent retailers do not engage in practices 
that comport with our hearing aid compatibility rules, how will this 
present problems for hearing-impaired consumers? For instance, do 
parties foresee instances where independent retailers would claim that 
certain wireless phone models are compliant yet would not allow 
consumers to return handsets if hearing aid compatibility-related 
problems arose? Have there already been instances where independent 
retailers have claimed that certain phone models were hearing aid-
compatible but refused to allow consumers to return handsets if hearing 
aid compatibility-related problems arose? We have determined that the 
ability to return handsets that do not comply with our rules is not a 
substitute for an in-store testing requirement for stores owned or 
operated by wireless carriers or service providers. What 
characteristics or independent retailers would support a different 
determination for the application of the in-store testing requirement 
in their case? Would returning wireless phones that present hearing aid 
compatibility-related problems be more difficult when handsets are 
purchased from an independent retailer or a small business retailer? We 
intend to follow these developments closely after the September 16, 
2005, handset deployment date. As noted earlier, we believe that 
persons with hearing disabilities must have a meaningful opportunity 
and sufficient time to identify and become familiar with digital 
wireless phones.
    6. Second, we seek comment on whether to narrow the de minimis 
exception so as to exempt from the hearing aid compatibility 
requirements wireless carriers, service providers and handset 
manufacturers that offer one digital wireless handset model per air 
interface, or whether we should narrow the de minimis exception in some 
other way. Specifically, we seek comment on whether the current rule 
reduces the ability of consumers with hearing aids and cochlear 
implants to have access to wireless devices. We seek comment on whether 
any particular modification that would narrow the de minimis exception 
would increase costs to all consumers, including those with and without 
hearing disabilities, or discourage market entry by manufacturers. We 
seek comment on the number of wireless carriers, service providers and 
manufacturers that would be affected by any such change in the rule, 
including the impact on small businesses. We encourage commenters to be 
specific and to provide empirical evidence as to the impact of 
narrowing the de minimis exception.

I. Procedural Matters

A. Ex Parte Rules--Permit-But-Disclose Proceeding

    7. This is a permit-but-disclose rulemaking proceeding, subject to 
the ``permit-but-disclose'' requirements under Sec.  1.1206(b) of the 
Commission's rules. Ex parte presentations are permitted, except during 
the Sunshine Agenda period, provided they are disclosed pursuant to the 
Commission's rules.

B. Comment Dates

    8. Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's 
rules, interested parties may file comments on or before September 26, 
2005 and reply comments on or before October 25, 2005. All filings 
related to this Notice of Proposed Rulemaking should refer to WT Docket 
No. 01-309.
    9. Comments may be filed using the Commission's Electronic Comment 
Filing System (ECFS), the Federal Government's eRulemaking Portal, or 
by filing paper copies. See Electronic Filing of Documents in 
Rulemaking Proceedings, 63 FR 24121 (1998).
    10. Comments may be filed electronically using the Internet by 
accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal 
eRulemaking Portal: http://www.regulations.gov. Filers should follow 
the instructions provided on the Web site for submitting comments.
    11. For ECFS filers, if multiple docket or rulemaking numbers 
appear in the caption of this proceeding, filers must transmit one 
electronic copy of the comments for each docket or rulemaking number 
referenced in the caption. In completing the transmittal screen, filers 
should include their full name, U.S. Postal Service mailing address, 
and the applicable docket or rulemaking number. Parties may also submit 
an electronic comment by Internet e-mail. To get filing instructions, 
filers should send an e-mail to [email protected], and include the following 
words in the body of the message, ``get form.'' A sample form and 
directions will be sent in response.
    12. Parties who choose to file by paper must file an original and 
four copies of each filing. If more than one docket or rulemaking 
number appears in the caption of this proceeding, filers must submit 
two additional copies for each additional docket or rulemaking number.
    13. Filings can be sent by hand or messenger delivery, by 
commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail (although we continue to experience delays in 
receiving U.S. Postal Service mail). All filings must be addressed to 
the Commission's Secretary, Office of the Secretary, Federal 
Communications Commission.
    14. The Commission's contractor will receive hand-delivered or 
messenger-delivered paper filings for the Commission's Secretary at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing 
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be 
held together with rubber bands or fasteners. Any envelopes must be 
disposed of before entering the building.
    15. Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
    16. U.S. Postal Service first-class, Express, and Priority mail 
should be addressed to 445 12th Street, SW., Washington DC 20554.
    17. All filings must be addressed to the Commission's Secretary, 
Marlene H. Dortch, Office of the Secretary, Federal Communications 
Commission, 445 12th Street, SW., Washington, DC 20554. Parties shall 
also serve one copy with the Commission's copy contractor, Best Copy 
and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-
B402, Washington, DC 20554, (202) 488-5300, or via e-mail to 
[email protected].
    18. Availability of documents. The public may view the documents 
filed in this proceeding during regular business hours in the FCC 
Reference Information Center, Federal Communications Commission, 445 
12th Street, SW.,

[[Page 43388]]

Room CY-A257, Washington, DC 20554, and on the Commission's Internet 
Home Page: http://www.fcc.gov. Copies of comments and reply comments 
are also available through the Commission's duplicating contractor: 
Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., 
Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160, or via e-
mail at the following e-mail address: http://www.bcpiweb.com. To 
request materials in accessible formats for people with disabilities 
(braille, large print, electronic files, audio format), send an e-mail 
to [email protected] or call the Consumer & Governmental Affairs Bureau at 
202-418-0530 (voice), 202-418-0432 (tty).

C. Paperwork Reduction Act

    19. This document does not contain proposed information 
collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. In addition, therefore, it does not contain any new 
or modified ``information collection burden for small business concerns 
with fewer than 25 employees,'' pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4).

II. Initial Regulatory Flexibility Analysis

    20. As required by the Regulatory Flexibility Act (RFA), the 
Commission has prepared an Initial Regulatory Flexibility Analysis 
(IRFA) of the possible significant economic impact on small entities of 
the policies and rules proposed in this Further Notice of Proposed Rule 
Making. Written public comments are requested regarding this IRFA. 
Comments must be identified as responses to the IRFA and must be filed 
by the deadlines for comments on the FNPRM provided in paragraph 77 of 
the Commission's order. The Commission will send a copy of the FNPRM, 
including this IRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration. In addition, the Further Notice of Proposed 
Rulemaking and IRFA (or summaries thereof) will be published in the 
Federal Register.

Need for, and Objectives of, the Proposed Rules

    21. In the Order on Reconsideration, we clarified that the live, 
in-store consumer testing requirement applies to all carrier-owned and 
operated retail outlets. In addition, we clarified that the de minimis 
exception, which exempts from the hearing aid compatibility 
requirements wireless carriers, service providers and handset 
manufacturers that offer two or fewer digital wireless handset models, 
applies on a per air interface basis, rather than across an entire 
product line.
    22. In the Further Notice of Proposed Rulemaking, the Commission 
seeks comment on:
     Extending the live, in-store consumer testing requirement 
to retail outlets that are not directly owned or operated by wireless 
carriers or service providers; and
     Whether to narrow the de minimis exception so as to exempt 
from the hearing aid compatibility requirements wireless carriers, 
service providers and handset manufacturers that offer one digital 
wireless handset model per air interface, as well as other potential 
ways to narrow the de minimis exception.

Legal Basis

    23. Authority for issuance of this item is contained in sections 1, 
4(i), 7, 10, 201, 202, 208, 214, 301, 303, 308, 309(j), and 310 of the 
Communications Act of 1934, as amended, 47 U.S.C. Sec. Sec.  151, 
154(i), 157, 160, 201, 202, 208, 214, 301, 303, 308, 309(j), and 310.

Description and Estimate of the Number of Small Entities to Which the 
Proposed Rules Will Apply

    24. 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 Small Business 
Administration (SBA). As of the year 2002, according to SBA data, there 
were approximately 22.4 million small businesses nationwide.
    25. Neither the Commission nor the SBA has developed specific 
definitions for small providers of the industries affected. Therefore, 
throughout our analysis, unless otherwise indicated, the Commission 
uses the applicable generic definitions under the SBA rules, and the 
North American Industry Classification System (NAICS) categories. In 
addition, to facilitate our analysis, we utilize the Commission's 
report, Trends in Telephone Service (Trends), published annually by the 
Commission's Wireline Competition Bureau. Below, we further describe 
and estimate the number of small entities that may be affected by the 
proposed rules, if adopted.
    26. Cellular and Other Wireless Telecommunications and Paging. The 
SBA has developed a size standard for wireless small businesses within 
the two separate categories of Cellular and Other Wireless 
Telecommunications, and 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, 975 companies reported that they were 
engaged in the provision of wireless service. Of these 975 companies, 
an estimated 767 have 1,500 or fewer employees and 208 have more than 
1,500 employees. Consequently, we estimate that a majority of small 
wireless service providers may be affected by the proposed rules, if 
adopted.
    27. Wireless Communications Equipment Manufacturers. The SBA has 
established a small business size standard for 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 Commission estimates that the majority of wireless 
communications equipment manufacturers are small businesses.
    28. Radio, Television, and Other Electronics Stores. ``This U.S. 
industry comprises: (1) Establishments known as consumer electronics 
stores primarily engaged in retailing a general line of new consumer-
type electronic products; (2) establishments specializing in retailing 
a single line of consumer-type electronic products (except computers); 
or (3) establishments primarily engaged in retailing these new 
electronic products in combination with repair services.'' The SBA has 
developed a small business size standard for this category of retail 
store; that size standard is $7.5 or less in annual revenues. According 
to Census Bureau data for 1997, there were 8,328 firms in this category 
that operated for the entire year. Of these, 8,088 firms had annual 
sales of under $5 million, and an additional 132 had annual sales of $5 
million to $9,999,999. Therefore, the majority of these businesses may 
be considered to be small.

[[Page 43389]]

Description of Projected Reporting, Recordkeeping and Other Compliance 
Requirements

    29. The FNPRM seeks comment on two of the Commission's existing 
hearing aid compatibility rules. First, all retail outlets owned or 
operated by wireless carriers or service providers must make live, in-
store consumer testing available at this time. The Commission is 
seeking comment on extending this requirement to additional retail 
outlets. Second, the de minimis exception currently exempts from the 
hearing aid compatibility requirements wireless carriers, service 
providers and handset manufacturers that offer two or fewer digital 
wireless handset models, and applies on a per air interface basis. The 
Commission is seeking comment on narrowing the de minimis exception so 
as to exempt from the hearing aid compatibility requirements wireless 
carriers, service providers and handset manufacturers that offer one 
digital wireless handset model per air interface, as well as other 
potential ways to narrow the de minimis exception.
    30. The proposals set forth in the FNPRM do not entail reporting, 
recordkeeping, and/or third-party consultation. The FNPRM seeks comment 
on two of the Commission's existing hearing aid compatibility rules.

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

    31. 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.
    32. The FNPRM seeks comment two of the Commission's hearing aid 
compatibility rules and could impact small entities. As noted in the 
Hearing Aid Compatibility Order, however, the critical nature of 
hearing aid compatibility with wireless phones limits the Commission's 
ability to provide small wireless carriers, service providers and 
handset manufacturers with a substantially less burdensome set of 
regulations than that placed on larger entities. Nonetheless, as set 
forth in the Order on Reconsideration and the FNPRM, the Commission 
continues to recognize that certain manufacturers and service 
providers, which may have only a small presence in the market, may be 
impacted by any future actions. We specifically seek comment on 
alternatives that might lessen any adverse economic impact on small 
entities, while fulfilling the goals of this proceeding.

Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    33. None.

III. Ordering Clauses

    34. Pursuant to the authority of sections 1, 4(i), 7, 10, 201, 202, 
208, 214, 301, 302, 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, 302, 303, 308, 309(j), 310, and 610, this 
FNPRM is adopted.
    35. It is further ordered that pursuant to applicable procedures 
set forth in Sec. Sec.  1.415 and 1.419 of the Commission's Rules, 47 
CFR 1.415, 1.419, interested parties may file comments on the Further 
Notice of Proposed Rulemaking on or before September 26, 2005 and reply 
comments on or before October 25, 2005.
    36. It is further ordered that the Commission's Consumer 
Information Bureau, Reference Information Center, shall send a copy of 
the Further Notice of Proposed Rulemaking and the IRFA, to the Chief 
Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 20

    Communications common carriers.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 05-14614 Filed 7-26-05; 8:45 am]
BILLING CODE 6712-01-P