[Federal Register Volume 75, Number 173 (Wednesday, September 8, 2010)]
[Proposed Rules]
[Pages 54546-54560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22254]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 20
[WT Docket No. 07-250; FCC 10-145]
Amendment of the Commission's Rules Governing Hearing Aid-
Compatible Mobile Handsets
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document the Commission seeks comment on revisions to
the Commission's wireless hearing aid compatibility rules. The
Commission initiates this proceeding to ensure that consumers with
hearing loss are able to access wireless communications services
through a wide selection of devices without experiencing disabling
interference or other technical obstacles.
DATES: Interested parties may file comments on or before October 25,
2010, and reply comments on or before November 22, 2010.
ADDRESSES: You may submit comments, identified by WT Docket No. 07-250;
FCC 10-145, 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.
Mail: 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 the Commission continues 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.
People With Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: fcc.gov">FCC504@fcc.gov 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.
FOR FURTHER INFORMATION CONTACT: John Borkowski, Wireless
Telecommunications Bureau, (202) 418-0626, e-mail
fcc.gov">John.Borkowski@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Further Notice of Proposed Rulemaking (FNPRM) in WT Docket No. 07-250;
FCC 10-145, adopted August 5, 2010, and released on August 5, 2010.
This summary should be read with its companion document, the Policy
Statement and Second Report and Order summary published elsewhere in
this issue of the Federal Register. The full text of the FNPRM is
available for public inspection and copying during business hours in
the FCC Reference Information Center, Portals II, 445 12th Street, SW.,
Room CY-A257, Washington, DC 20554. It also may be purchased from the
Commission's duplicating contractor at Portals II, 445 12th Street SW.,
Room CY-B402, Washington, DC 20554; the contractor's Web site, http://www.bcpiweb.com; or by calling (800) 378-3160, facsimile (202) 488-
5563, or e-mail [email protected]. Copies of the Further Notice also may
be obtained via the Commission's Electronic Comment
[[Page 54547]]
Filing System (ECFS) by entering the docket number WT Docket No. 07-
250. Additionally, the complete item is available on the Federal
Communications Commission's Web site at http://www.fcc.gov.
Synopsis of the Further Notice of Proposed Rulemaking
I. Introduction
In this FNPRM the Commission seeks comment on potential changes to
its hearing aid compatibility rules in three respects. First, the
Commission proposes to extend the scope of the rules beyond the current
category of Commercial Mobile Radio Service (CMRS) to include handsets
used to provide wireless voice communications over any type of network
among members of the public or a substantial portion of the public. The
Commission seeks comment on this proposal, on whether considerations of
technological feasibility or marketability prevent application of its
hearing aid compatibility requirements to any class of these handsets,
and on what transition period is appropriate for applying the
requirements to newly covered handsets. Second, the Commission seeks
further comment on whether to extend its in-store testing requirement
beyond retail stores owned or operated by service providers to some or
all other retail outlets. Third, the Commission seeks comment on
whether to extend to all circumstances the ability to meet hearing aid
compatibility standards for radio frequency (RF) interference reduction
for GSM operations in the 1900 MHz band through software that enables
the user to reduce maximum power output by up to 2.5 decibels (dB).
II. Discussion
A. Extension of Hearing Aid Compatibility Rules to New Technologies and
Networks
2. The Commission has concluded that its wireless hearing aid
compatibility rules must provide people who use hearing aids and
cochlear implants with continuing access to the most advanced and
innovative communications technologies as they develop, while at the
same time maximizing the conditions for innovation and investment.
Consistent with this principle, the Commission proposes that its
hearing aid compatibility requirements should apply to all customer
equipment used to provide wireless voice communications over any type
of network among members of the public or a substantial portion of the
public via a built-in speaker where the equipment is typically held to
the ear, so long as meeting hearing aid compatibility standards is
technologically feasible and would not increase costs to an extent that
would preclude successful marketing.
3. Statutory Scope. First, the Commission proposes to find that the
scope of the Hearing Aid Compatibility Act broadly encompasses devices
used to provide voice communications. The Hearing Aid Compatibility
Act, 47 U.S.C. 610, directs the Commission to establish regulations to
ensure reasonable access by persons with hearing loss to ``telephone
service.'' To achieve this end, the Act directs that the Commission
require ``telephones'' to meet hearing aid compatibility standards. The
Act provides exemptions for, among other things, ``telephones used with
public mobile services'' and ``telephones used with private radio
services,'' but stipulates, that the Commission should periodically
review these exemptions and revoke or limit them if necessary to
reflect developments over time in technology and usage patterns. The
Commission modified the exemption for wireless phones in 2003.
4. Neither the Hearing Aid Compatibility Act nor the broader
Communications Act defines the terms ``telephone'' or ``telephone
service.'' In view of the other provisions in the Act, however, the
Commission proposes to interpret the term ``telephone,'' as used in the
Hearing Aid Compatibility Act, to encompass anything that is commonly
understood to be a telephone or to provide telephone service, as that
understanding may evolve over time, regardless of regulatory
classifications evoked elsewhere in the Communications Act. The
Commission seeks comment on this proposed finding and whether such a
reading best fulfills the Congressional intent that ``all persons
should have available the best telephone service which is
technologically and economically feasible.'' Moreover, the Commission
seeks comment on whether an evolving definition of ``telephone,'' for
purposes of the Hearing Aid Compatibility Act, is consistent with the
directive that the Commission revoke or limit the exemptions for public
mobile services and private radio services over time to reflect
developments in technology and usage patterns.
5. Through the Hearing Aid Compatibility Act, Congress charged the
Commission with the responsibility of establishing regulations as
necessary to ensure access to telephone service by persons with hearing
loss. As cell phone use became integrated into everyday American life,
the Commission lifted the prior exemption for digital wireless
telephones and subjected them to hearing aid compatibility requirements
under its rules. The Commission proposes to find that to carry out
Congress's mandate to ensure access to telephone service by persons
with hearing loss, it would serve the public interest to interpret the
definition of telephone to include wireless handsets that are used for
voice communications among members of the public or a substantial
portion of the public, regardless of whether the services provisioned
through the handset may fall beyond the currently covered category of
CMRS. The Commission seeks comment on this proposed finding.
6. In addition, the Commission proposes to find that this broad
interpretation of the definition of telephone should include multi-use
devices that can function as traditional telephones typically used by
being held to the ear, but which may have other capabilities and serve
additional purposes. While the Commission recognizes that rendering the
telephone feature of such a device hearing aid-compatible may require
adjustments to other features over which the Commission might otherwise
not have jurisdiction, the Commission proposes to find that under these
circumstances, the Commission nevertheless would have authority to
require adjustments to both telephone features and other aspects of the
device in order to render the device hearing aid-compatible. Under the
Hearing Aid Compatibility Act, the Commission is specifically directed
to establish such regulations as are necessary to ensure access to
telephone service by persons with hearing loss. To the extent
achievement of this goal may require imposing hearing aid compatibility
requirements on multi-use devices with telephonic capabilities, as
described above, the Commission proposes to find that it has
jurisdiction to require hearing aid compatibility for such devices, and
the Commission seeks comment on this proposed finding.
7. Scope of Proposed Rule. The Commission's proposal herein to
extend the scope of the hearing aid compatibility rules is limited to
wireless handsets that afford an opportunity to communicate by voice
with members of the public or with users of a network that is open to
the public or a substantial portion of the public. Thus, in a manner
broadly consistent with the distinction drawn in the Hearing Aid
Compatibility Act between ``public
[[Page 54548]]
mobile services'' and ``private radio services,'' the Commission
proposes not to extend the rules to certain non-interconnected systems
that are used solely for internal communications, such as public safety
or dispatch networks. While the Commission recognizes that there may be
important interests in affording access to these systems to employees
who use hearing aids, the Commission tentatively concludes that given
the very different circumstances of the market for these handsets, and
in the absence of an existing universe of handsets meeting hearing aid
compatibility standards, the burdens on manufacturers and system
operators of satisfying hearing aid compatibility requirements would
outweigh the public benefits. The Commission seeks comment on this
analysis, and in particular on whether the four criteria for revoking
or limiting the wireless exemption are satisfied for any such internal
systems.
8. At the same time, the Commission's proposal would include all
otherwise covered handsets that are used for voice communication with
members of the public or a substantial portion of the public, including
those that may not be interconnected with the public switched telephone
network but can access another network that is open to members of the
public. To the extent a handset otherwise used for internal
communications can also be used for voice communications with members
of the public outside the internal network, it would also be covered
under this proposal. In addition, this proposal would cover handsets
used for Mobile Satellite Service (MSS) that otherwise fall within the
scope of the rule. In addressing the four criteria set forth below,
commenters should consider whether the circumstances surrounding these
or any other classes of handset should cause such handsets to be
excluded from the rule.
9. Statutory Criteria. Under the Hearing Aid Compatibility Act, the
Commission is to revoke or limit the wireless exemption if four
criteria are satisfied: (1) Such revocation or limitation is in the
public interest; (2) continuation of the exemption without such
revocation or limitation would have an adverse effect on individuals
with hearing loss; (3) compliance with the requirements adopted is
technologically feasible for the telephones to which the exemption
applies; and (4) compliance with the requirements adopted would not
increase costs to such an extent that the telephones to which the
exemption applies could not be successfully marketed. The Commission
seeks comment on whether these criteria are met with respect to
handsets used for voice communications with members of the public or a
substantial portion of the public.
10. Adverse Effect on People with Hearing Loss. The Commission
proposes to find that failure to extend hearing aid compatibility
requirements broadly to handsets used for voice communications with
members of the public or a substantial portion of the public would have
an adverse effect on people with hearing loss. In the 2003 Hearing Aid
Compatibility Order,\1\ the Commission determined that continuing to
exempt handsets providing certain CMRS from hearing aid compatibility
requirements would have an adverse effect on individuals with hearing
loss because the lack of hearing aid-compatible digital phones rendered
them unable to take advantage of features of these phones that were
becoming increasingly central to American life. The Commission proposes
to find that this is now true broadly for the range of handsets used to
provide wireless voice communications, including those operating over
new and developing technologies. If these new handsets are not made
hearing aid-compatible, consumers with hearing loss would be largely
denied the opportunity to use advanced functionalities and services
that are rapidly becoming commonplace in our society. Given the rapid
pace of technological innovation and the development of new modes of
wireless voice communication, the Commission is concerned about the
consequences of waiting until a particular technology is in widespread
use before beginning a proceeding to determine that lack of access to
that technology adversely affects individuals with hearing loss.
Rather, the Commission suggests that it is the inability to access
innovative technologies as they develop that has an adverse effect. The
Commission therefore proposes, in order to encourage manufacturers to
consider hearing aid compatibility at the earliest stages of the
product design process, to establish a broad scope for hearing aid
compatibility obligations that is not dependent on particular forms of
network technology. The Commission proposes to find that this broad
scope is necessary to fulfill the goal of the Hearing Aid Compatibility
Act that people who use hearing aids and cochlear implants have access
to the fullest feasible extent to all means of voice communication. The
Commission seeks comment on this analysis.
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\1\ The Commission's Rules Governing Hearing Aid-Compatible
Telephones, WT Docket 01-309, Report and Order, 18 FCC Rcd 16753
(2003) (2003 Hearing Aid Compatibility Order).
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11. Public Interest. The Commission also proposes to find that
expanding the scope of its hearing aid compatibility requirements as
described would serve the public interest. In 2003, the Commission
found that modifying the wireless hearing aid compatibility exemption
promoted the public interest because, among other reasons, it enabled
people with hearing loss to enjoy the public safety and other benefits
of digital wireless phones and it enabled all consumers to communicate
more easily with those who have hearing loss. The Hearing Aid
Compatibility Act makes clear that consumers with hearing loss should
be afforded equal access to communications networks to the fullest
extent feasible. To ensure the public interest is served in such
fashion, the Commission's stated policy is to encourage manufacturers
to consider hearing aid compatibility at the earliest stages of the
product design process. Commenters should address the Commission's
proposed finding that further modification of the exemption to reach
handsets using new technologies is in the public interest today.
12. In addition, the Commission is unconvinced to date by arguments
that applying hearing aid compatibility requirements to MSS would not
confer significant public benefits. To the contrary, even if MSS has
relatively few consumer users, both users who subscribe as individuals
and those who are provided access to MSS by their employers would
benefit from the option to obtain hearing aid-compatible telephones.
Furthermore, the usage of MSS may increase. Indeed, due to its
ubiquitous coverage and its resistance to disruption from terrestrial
disasters, in some situations MSS has important advantages over
terrestrial wireless service. Therefore, the Commission proposes to
find that failure to apply hearing aid compatibility requirements to
MSS handsets would adversely affect individuals with hearing loss, and
that it would serve the public interest to ensure that individuals with
hearing loss have access to hearing aid-compatible MSS handsets. The
Commission seeks comment on this analysis.
13. Technological Feasibility. In the 2003 Hearing Aid
Compatibility Order, the Commission found that meeting hearing aid
compatibility standards was technologically feasible for the telephones
covered by that order in large part because several handsets were
already on the market that met those
[[Page 54549]]
standards. To the extent that handsets are currently on the market or
are planned for introduction that fall within the rule coverage that
the Commission proposes today, but that are not covered by the existing
rule, the Commission seeks comment on whether they would meet the
existing American National Standards Institute (ANSI) standard (or a
similar performance standard, for frequency bands and air interfaces
that are not addressed by the existing standard). Moreover, because the
hearing aid compatibility standards are already being met for handsets
that operate on a variety of 2G and 3G air interfaces over two well
separated frequency bands, the Commission considers it likely, in the
absence of evidence to the contrary, that the same standards could also
be met for handsets used for similar services that are not within the
class of currently covered CMRS. While the Commission recognizes that
technological feasibility cannot be predicted with certainty for future
handsets, the Commission notes that the Hearing Aid Compatibility Act
expressly provides for waivers for new telephones or telephones
associated with a new technology or service in cases of technological
infeasibility. Therefore, absent evidence that meeting hearing aid
compatibility standards is not technologically feasible for any class
of handsets or service, the Commission anticipates that compliance will
be technologically feasible. Commenters arguing that compliance is not
technologically feasible should provide specific engineering evidence
related to a defined class of handsets.
14. The Commission seeks comment on how its hearing aid
compatibility rules should address circumstances where voice capability
may be enabled on a handset by a party other than the manufacturer,
particularly where adding the new voice capability may affect operating
parameters of the handset such as the frequency range, modulation type,
maximum output power, or other parameters specified in the Commission's
rules. The Commission's rules for equipment authorization hold the
grantee to be the responsible party to ensure continued compliance of
the handset and require the grantee to inform the Commission if these
parameters change. The Commission seeks comment on the proper
procedures for a manufacturer to test the hearing aid compatibility of
voice functions that are not initially installed into the phone but may
be enabled, for example, by the installation of a software program that
affects the circumstances under which the transmitter operates. The
Commission seeks comment on whether there are other ways to ascertain
and regulate the hearing aid compatibility of such functions, for
example, at the time the service provider or applications store enables
that software. The Commission also seeks comment on the appropriate
regulatory treatment if the hearing aid compatibility of these
functions cannot be tested; in particular, whether a handset that meets
hearing aid compatibility standards for all voice operations built into
the phone but can also accommodate software-added voice operations that
cannot be tested may be counted as hearing aid-compatible. Commenters
should consider handsets that can provide additional voice capabilities
to those already available in the off-the-shelf handset via the
installation of software, as well as handsets whose only, or initial,
voice capability is not incorporated off the shelf but is instead
available through commercial sources. In addressing these issues,
commenters should consider how voice services may be offered over new
technologies such as WiMax and LTE interfaces and who may manage these
capabilities.
15. Marketability. The Commission previously found that the costs
of compliance would not preclude successful marketing for phones
covered under the current rules because some phones meeting the
standard for acoustic coupling compliance were already being marketed,
the modifications needed to achieve inductive coupling capability did
not appear unduly costly, and increased demand was anticipated to drive
down production costs. Based on the number of hearing aid-compatible
models that are already being successfully marketed across multiple air
interfaces and frequency bands, the Commission anticipates, in the
absence of convincing evidence to the contrary, that other telephones
offering similar capabilities and meeting the same or comparable
compliance standards could also be successfully marketed. The
Commission seeks comment, supported by evidence, on whether this is so,
and whether there is any class of handsets for which the cost of
achieving compliance would preclude successful marketing. Again, the
Commission notes the availability of waivers in the event future new
telephones or telephones used with new technologies could not be
successfully marketed due to hearing aid compatibility compliance
costs.
16. Absent convincing evidence of technological infeasibility or
costs that preclude marketability, the Commission intends to apply to
all handsets that will be covered under its broadened rule, after an
appropriate transition period, the same hearing aid compatibility
requirements that apply to currently covered handsets. The Commission
seeks comment on whether, for reasons of technological infeasibility or
prohibitive costs, these numerical benchmarks or other rule provisions
cannot be applied to any class of handsets. Again, the Commission seeks
specific evidence as to why particular requirements cannot be met and
what alternative requirements would be feasible and appropriate.
17. Transition Period. Ever since the Commission adopted the first
wireless hearing aid compatibility rules in 2003, the Commission has
consistently recognized that it takes time for handsets with new
specifications to be designed, produced, and brought to market, and
accordingly the Commission has afforded meaningful transition periods
before new hearing aid-compatible handset deployment benchmarks and
other requirements have become effective. The Commission seeks comment
on the appropriate transition period for applying hearing aid
compatibility benchmarks and other requirements to lines of handsets
that are outside the subset of CMRS that is currently covered by
Section 20.19(a). Would a two-year transition be appropriate,
consistent with the lead time the Commission afforded to comply with
the original requirements for acoustic coupling compatibility? Would a
shorter period, such as one year, be reasonable given that
manufacturers are already meeting hearing aid compatibility
requirements for currently covered classes of handsets, and many of the
engineering solutions reached for those handsets may be transferrable
to others? Is it likely that many handsets will already meet hearing
aid compatibility standards either as already marketed or as currently
planned, and therefore all that will be required is testing of existing
handsets rather than introduction of new products? On the other hand,
are there special design difficulties that may render a longer
transition period necessary for some classes of handsets? For example,
are there any special characteristics of satellite transmission that
may require particular transition rules for MSS? In consideration of
the time needed for phones to progress from the production line to
service providers' offerings, should the transition period be longer
for service providers than for manufacturers, and should it be longer
for smaller service providers than for
[[Page 54550]]
nationwide carriers? Parties are invited to comment on these and any
other transition issues, either for all newly covered handsets or some
subset of those handsets.
B. In-Store Testing Requirement for Independent Retailers
18. Section 20.19(c) and (d) of the Commission's rules requires
that wireless service providers make their hearing aid-compatible
handset models available for consumer testing in each retail store that
they own or operate. This testing requirement does not apply to non-
service providers, such as individuals, independent retailers,
importers, or manufacturers.
19. The Commission seeks targeted comment on whether the in-store
testing requirement should be extended to some or all retail outlets
other than those owned or operated by service providers. Given the
growth of new channels of distribution, extension of the in-store
testing requirement would help to ensure that consumers have the
information they need to choose a handset that will operate correctly
with their hearing aid or cochlear implant. The Commission seeks
comment as to whether, if the Commission does extend the in-store
testing requirement to some retail stores other than those owned or
operated by service providers, the Commission should extend it to all
entities that sell handsets to consumers through physical locations or
whether some of these retailers should be excluded from the requirement
based on their general customer service practices, the types or numbers
of handsets that they sell, their size, or other considerations.
20. In addition to allowing consumers to test handsets, the
Commission seeks comment on whether it should require independent
retailers to allow a customer with hearing loss to return a handset
without penalty, either instead of or in addition to an in-store
testing requirement. The Commission notes that the Commission
previously encouraged wireless service providers to provide a 30 day
trial period or otherwise be flexible on their return policies for
consumers seeking access to compliant phones. The Commission reiterates
that a flexible return policy could help consumers with hearing loss by
providing them with additional time and opportunity to ensure that
their handset is compatible with their hearing aid.
21. The Commission also seeks comment on the Commission's authority
to extend the in-store testing requirement beyond service providers.
First, the Commission seeks comment on interpreting Sections 1 and 2 of
the Communications Act, coupled with that Act's Section 3 definition of
``radio communications,'' to cover retail operations that have become
enmeshed in the provision of wireless service. The Commission seeks
comment on whether a retailer engaged in the sale of wireless handsets
is subject to the Commission's general jurisdictional grant because it
is engaged in providing ``services,'' including the sale of
``instrumentalities, facilities, [and] apparatus * * * incidental to *
* * transmission, within the meaning of Section 3.''
22. Further, Section 302a of the Act authorizes the Commission to
``make reasonable regulations * * * governing the interference
potential of handsets which in their operation are capable of emitting
radio frequency energy * * * in sufficient degree to cause harmful
interference to radio communications * * *'' Section 302a further
provides that ``[n]o person shall * * * sell, offer for sale, * * *, or
use devices, which fail to comply with regulations promulgated pursuant
to this section.'' The Commission seeks comment on whether expanding
in-store testing requirements to help consumers operate equipment in a
manner that does not cause interference to their hearing aids would
fall within its jurisdiction under these provisions. In addition, the
language of the Hearing Aid Compatibility Act itself is expansive, and
it clearly envisions that the Commission should exercise its mandate
broadly by ``establish[ing] such regulations as are necessary'' to
ensure access to telephone service by persons with hearing loss. The
Commission seeks comment on whether this language provides a basis for
exercising its jurisdiction over additional parties so that the
Commission may continue to fulfill the mandate of the Hearing Aid
Compatibility Act.
C. GSM Operations at 1900 MHz
23. In the accompanying Second Report and Order, the Commission
amends its rules so that a manufacturer or service provider that offers
one or two handset models over the GSM air interface, which would not
have to offer any hearing aid-compatible GSM models but for its size,
may meet its hearing aid compatibility deployment obligation by
offering one handset that allows consumers to reduce the maximum
transmit power only for operations over the GSM air interface in the
1900 MHz band by up to 2.5 decibels and that meets the criteria for an
M3 rating for RF interference reduction after such power reduction. The
Commission here seeks comment on whether it should treat such handsets
as hearing aid-compatible for all purposes.
24. Section 20.19(b) of the Commission's rules provides that a
newly certified handset is hearing aid-compatible if it meets the
standard set forth in the 2007 revision of ANSI Standard C63.19, and
that standard states that the handset must be tested using its maximum
rated RF output power. The requirement to test for hearing aid
compatibility at full power serves the important goal of ensuring that
people with hearing loss have equal access to all of the service
quality and performance that a given wireless phone provides. At the
same time, meeting the RF interference reduction standard for phones
operating over the GSM air interface in the 1900 MHz band poses
significant technical challenges, particularly for phones with certain
desirable form factors. Moreover, as a legacy 2G network, GSM is in the
process of being supplanted by newer and more powerful technologies.
Under these circumstances, the Commission seeks comment on whether it
is in the public interest to relax the requirement to test handsets for
hearing aid compatibility at full power in order to facilitate the
near-term availability of desirable handsets to consumers. The
Commission welcomes data on the effects that a 2.5 dB reduction in
maximum power output will have on coverage, as well as any other
effects on consumers with or without hearing loss. In addition, the
Commission asks commenters to address how the proposed revision of ANSI
Standard C63.19, which would make it approximately 2.2 dB easier for a
GSM phone to achieve an M3 rating, should affect the Commission's
analysis. Does the expected revision, by making it likely that many
handsets will no longer need to reduce their power to meet the M3
criteria, ameliorate any negative effects of a rule change by rendering
it less likely that companies will use that rule change beyond the near
term? Or does the imminent prospect of a standards change that may
largely eliminate the apparent problem counsel against further
adjustments to the Commission's rules to address that problem?
25. The Commission proposes to find that if the Commission were to
extend the ability to meet hearing aid compatibility standards by
allowing the user to reduce the maximum power for GSM operations in the
1900 MHz band, the Commission would do so subject to the same
conditions that it has imposed in the context of the de minimis rule.
Thus, the handset would have to
[[Page 54551]]
operate at full power when calling 911, and the manufacturer or service
provider would have to disclose that activation of a special mode is
required to meet the hearing aid compatibility standard and must
explain how to activate the special mode and the possibility of a loss
of coverage in the device manual or product insert. The Commission
seeks comment on these and any other possible conditions.
III. Procedural Matters
A. Initial Regulatory Flexibility Analysis
26. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA),\2\ the Commission has prepared this present Initial
Regulatory Flexibility Analysis (IRFA) of the possible significant
economic impact on a substantial number of small entities of the
policies and rules proposed in this Further Notice of Proposed Rule
Making (FNPRM). Written public comments are requested on 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 Section III.C.2.
of this summary. The Commission will send a copy of the FNPRM,
including this IRFA, to the Chief Counsel for Advocacy of the Small
Business Administration (SBA).\3\
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\2\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), Pub. L. 104-121, Title II, 110 Stat. 857 (1996).
\3\ See 5 U.S.C. 603(a).
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27. Although Section 213 of the Consolidated Appropriations Act of
2000 provides that the RFA shall not apply to the rules and competitive
bidding procedures for frequencies in the 746-806 MHz Band,\4\ the
Commission believes that it would serve the public interest to analyze
the possible significant economic impact of the proposed policy and
rule changes in this band on small entities. Accordingly, this IRFA
contains an analysis of this impact in connection with all spectrum
that falls within the scope of this Further Notice, including spectrum
in the 746-806 MHz Band.
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\4\ In particular, this exemption extends to the requirements
imposed by Chapter 6 of Title 5, United States Code, Section 3 of
the Small Business Act (15 U.S.C. 632) and Section 3507 and 3512 of
Title 44, United States Code. Consolidated Appropriations Act 2000,
Pub. L. 106-113, 113 Stat. 2502, App. E, Sec. 213(a)(4)(A)-(B); see
145 Cong. Rec. H12493-94 (Nov. 17, 1999); 47 U.S.C.A. 337 note at
Section 213(a)(4)(A)-(B).
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1. Need for, and Objectives of, the Proposed Rules
28. The FNPRM proposes to find that the scope of the Commission's
hearing aid compatibility rules should be extended so as to cover all
customer equipment used to provide wireless communications among
members of the public or a substantial portion of the public via a
built-in speaker where the equipment is typically held to the ear, so
long as meeting hearing aid compatibility standards is technologically
feasible and would not raise costs to an extent that would preclude
successful marketing of the equipment. The FNPRM seeks comment on: (1)
Whether considerations of technological feasibility or marketability
prevent application of the hearing aid compatibility requirements, or
require modification of those requirements, as to any class of
handsets; and (2) what transition period is appropriate for applying
the requirements to newly covered handsets. This proposed rule change
would ensure that people with hearing loss will have access to new and
advanced handsets regardless of the frequency over which they operate
or the voice technology mode deployed, while maintaining consistency
with the technological feasibility and marketability criteria set forth
in the Hearing Aid Compatibility Act.\5\
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\5\ 47 U.S.C. 610.
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29. The FNPRM also seeks comment on whether the current requirement
to make hearing aid-compatible handsets available in-store for consumer
testing should be extended to some or all retail outlets other than
those owned or operated by service providers. The Commission seeks
comment on how to define the class of independent retailers that would
be required to make hearing aid-compatible handsets available for in-
store testing. This rule change would ensure that consumers have the
information they need to choose a handset that will operate correctly
with their hearing aid or cochlear implant.
30. Additionally, the FNPRM seeks comment on whether the Commission
should treat handsets that allow consumers to reduce the maximum
transmit power only for operations over the GSM air interface in the
1900 MHz band by up to 2.5 decibels, except for calls to 911, and that
meet the criteria for an M3 rating after such power reduction, as
hearing aid-compatible for all purposes. This rule change would help
ensure the near-term availability of desirable handsets over the legacy
GSM air interface while still affording substantial access to people
with hearing loss. The Commission also proposes, for all such handsets,
that the manufacturer or service provider would have to disclose that
activation of a special mode is required to meet the hearing aid
compatibility standard, how to activate the special mode, and the
possibility of a loss of coverage if the special mode is activated.
This rule change would ensure that consumers have the information they
need to choose and operate a handset that will best function with their
hearing aid or cochlear implant.
2. Legal Basis
31. The potential actions about which comment is sought in this
FNPRM would be authorized pursuant to the authority contained in
Sections 4(i), 303(r), and 710 of the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 303(r), and 610.
3. Description and Estimate of the Number of Small Entities To Which
the Proposed Rules Would Apply
32. 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 proposed rules.\6\ The RFA generally defines the term
``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' \7\ In addition, the term ``small business'' has the
same meaning as the term ``small business concern'' under the Small
Business Act.\8\ 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'').\9\ To assist the Commission in
analyzing the total number of potentially affected small entities, the
Commission requests commenters to estimate the number of small entities
that may be affected by any rule changes that might result from this
FNPRM.
---------------------------------------------------------------------------
\6\ 5 U.S.C. 604(a)(3).
\7\ 5 U.S.C. 601(6).
\8\ 5 U.S.C. 601(3) (incorporating by reference the definition
of ``small business concern'' in the Small Business Act, 15 U.S.C.
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a
small business applies ``unless an agency, after consultation with
the Office of Advocacy of the Small Business Administration and
after opportunity for public comment, establishes one or more
definitions of such term which are appropriate to the activities of
the agency and publishes such definition(s) in the Federal
Register.''
\9\ 15 U.S.C. 632.
---------------------------------------------------------------------------
33. Small Businesses. Nationwide, there are a total of
approximately 29.6 million small businesses, according to the SBA.\10\
---------------------------------------------------------------------------
\10\ See SBA, Office of Advocacy, ``Frequently Asked
Questions,'' http://web.sba.gov/faqs (last visited Jan. 2009).
---------------------------------------------------------------------------
34. Cellular Licensees. The SBA has developed a small business size
standard for small businesses in the
[[Page 54552]]
category ``Wireless Telecommunications Carriers (except satellite).''
\11\ Under that SBA category, a business is small if it has 1,500 or
fewer employees.\12\ The census category of ``Cellular and Other
Wireless Telecommunications'' is no longer used and has been superseded
by the larger category ``Wireless Telecommunications Carriers (except
satellite)''. However, since currently available data was gathered when
``Cellular and Other Wireless Telecommunications'' was the relevant
category, earlier Census Bureau data collected under the category of
``Cellular and Other Wireless Telecommunications'' will be used here.
Census Bureau data for 2002 show that there were 1,397 firms in this
category that operated for the entire year.\13\ Of this total, 1,378
firms had employment of 999 or fewer employees, and 19 firms had
employment of 1,000 employees or more.\14\ Thus, under this category
and size standard, the majority of firms can be considered small.
---------------------------------------------------------------------------
\11\ 13 CFR 121.201, North American Industry Classification
System (NAICS) code 517210.
\12\ Id.
\13\ U.S. Census Bureau, 2002 Economic Census, Subject Series:
Information, ``Establishment and Firm Size (Including Legal Form of
Organization),'' Table 5, NAICS code 517212 (issued Nov. 2005).
\14\ Id. The census data do not provide a more precise estimate
of the number of firms that have employment of 1,500 or fewer
employees; the largest category provided is for firms with ``1000
employees or more.''
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35. Broadband Personal Communications Service. The broadband
Personal Communications Service (PCS) spectrum is divided into six
frequency blocks designated A through F, and the Commission has held
auctions for each block. The Commission has created a small business
size standard for Blocks C and F as an entity that has average gross
revenues of less than $40 million in the three previous calendar
years.\15\ For Block F, an additional small business size standard for
``very small business'' was added and is defined as an entity that,
together with its affiliates, has average gross revenues of not more
than $15 million for the preceding three calendar years.\16\ These
small business size standards, in the context of broadband PCS
auctions, have been approved by the SBA.\17\ No small businesses within
the SBA-approved small business size standards bid successfully for
licenses in Blocks A and B. There were 90 winning bidders that
qualified as small entities in the C Block auctions. A total of 93
``small'' and ``very small'' business bidders won approximately 40
percent of the 1,479 licenses for Blocks D, E, and F.\18\ On March 23,
1999, the Commission reauctioned 155 C, D, E, and F Block licenses;
there were 113 small business winning bidders.\19\
---------------------------------------------------------------------------
\15\ See Amendment of Parts 20 and 24 of the Commission's
Rules--Broadband PCS Competitive Bidding and the Commercial Mobile
Radio Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 7850-
7852 paras. 57-60 (1996); see also 47 CFR 24.720(b).
\16\ See Amendment of Parts 20 and 24 of the Commission's
Rules--Broadband PCS Competitive Bidding and the Commercial Mobile
Radio Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 7852
para. 60.
\17\ See Letter from Aida Alvarez, Administrator, Small Business
Administration, to Amy Zoslov, Chief, Auctions and Industry Analysis
Division, Wireless Telecommunications Bureau, Federal Communications
Commission, dated December 2, 1998.
\18\ FCC News, ``Broadband PCS, D, E and F Block Auction
Closes,'' No. 71744 (rel. Jan. 14, 1997).
\19\ See ``C, D, E, and F Block Broadband PCS Auction Closes,''
Public Notice, 14 FCC Rcd 6688 (WTB 1999).
---------------------------------------------------------------------------
36. On January 26, 2001, the Commission completed the auction of
422 C and F Block PCS licenses in Auction 35.\20\ Of the 35 winning
bidders in this auction, 29 qualified as ``small'' or ``very small''
businesses. Subsequent events concerning Auction 35, including judicial
and agency determinations, resulted in a total of 163 C and F Block
licenses being available for grant. In 2005, the Commission completed
an auction of 188 C block licenses and 21 F block licenses in Auction
58. There were 24 winning bidders for 217 licenses.\21\ Of the 24
winning bidders, 16 claimed small business status and won 156 licenses.
In 2007, the Commission completed an auction of 33 licenses in the A,
C, and F Blocks in Auction 71.\22\ Of the 14 winning bidders, six were
designated entities.\23\ In 2008, the Commission completed an auction
of 20 Broadband PCS licenses in the C, D, E and F Block licenses in
Auction 78.\24\
---------------------------------------------------------------------------
\20\ See ``C and F Block Broadband PCS Auction Closes; Winning
Bidders Announced,'' Public Notice, 16 FCC Rcd 2339 (2001).
\21\ See ``Broadband PCS Spectrum Auction Closes; Winning
Bidders Announced for Auction No. 58,'' Public Notice, 20 FCC Rcd
3703 (2005).
\22\ See ``Auction of Broadband PCS Spectrum License Closes;
Winning Bidders Announced for Auction No. 71,'' Public Notice, 22
FCC Rcd 9247 (2007).
\23\ Id.
\24\ See Auction of AWS-1 and Broadband PCS Licenses Rescheduled
For August 13, 2008, Notice of Filing Requirements, Minimum Opening
Bids, Upfront Payments and Other Procedures For Auction 78, Public
Notice, 23 FCC Rcd 7496 (2008) (AWS-1 and Broadband PCS Procedures
Public Notice).
---------------------------------------------------------------------------
37. Specialized Mobile Radio. The Commission awards ``small
entity'' bidding credits in auctions for Specialized Mobile Radio (SMR)
geographic area licenses in the 800 MHz and 900 MHz bands to firms that
had revenues of no more than $15 million in each of the three previous
calendar years.\25\ The Commission awards ``very small entity'' bidding
credits to firms that had revenues of no more than $3 million in each
of the three previous calendar years.\26\ The SBA has approved these
small business size standards for the 900 MHz Service.\27\ The
Commission has held auctions for geographic area licenses in the 800
MHz and 900 MHz bands. The 900 MHz SMR auction began on December 5,
1995, and closed on April 15, 1996. Sixty bidders claiming that they
qualified as small businesses under the $15 million size standard won
263 geographic area licenses in the 900 MHz SMR band. The 800 MHz SMR
auction for the upper 200 channels began on October 28, 1997, and was
completed on December 8, 1997. Ten bidders claiming that they qualified
as small businesses under the $15 million size standard won 38
geographic area licenses for the upper 200 channels in the 800 MHz SMR
band.\28\ A second auction for the 800 MHz band was held on January 10,
2002 and closed on January 17, 2002 and included 23 licenses. One
bidder claiming small business status won five licenses.\29\
---------------------------------------------------------------------------
\25\ 47 CFR 90.814(b)(1).
\26\ Id.
\27\ See Letter from Aida Alvarez, Administrator, Small Business
Administration, to Thomas Sugrue, Chief, Wireless Telecommunications
Bureau, Federal Communications Commission, dated August 10, 1999.
\28\ See ``Correction to Public Notice DA 96-586 `FCC Announces
Winning Bidders in the Auction of 1020 Licenses to Provide 900 MHz
SMR in Major Trading Areas,' '' Public Notice, 18 FCC Rcd 18367 (WTB
1996).
\29\ See ``Multi-Radio Service Auction Closes,'' Public Notice,
17 FCC Rcd 1446 (WTB 2002).
---------------------------------------------------------------------------
38. The auction of the 1,053 800 MHz SMR geographic area licenses
for the General Category channels began on August 16, 2000, and was
completed on September 1, 2000. Eleven bidders that won 108 geographic
area licenses for the General Category channels in the 800 MHz SMR band
qualified as small businesses under the $15 million size standard. In
an auction completed on December 5, 2000, a total of 2,800 Economic
Area licenses in the lower 80 channels of the 800 MHz SMR service were
sold. Of the 22 winning bidders, 19 claimed ``small business'' status
and won 129 licenses. Thus, combining all three auctions, 40 winning
bidders for geographic licenses in the 800 MHz SMR band claimed status
as small business.
39. In addition, there are numerous incumbent site-by-site SMR
licensees and licensees with extended
[[Page 54553]]
implementation authorizations in the 800 and 900 MHz bands. The
Commission does not know how many firms provide 800 MHz or 900 MHz
geographic area SMR services pursuant to extended implementation
authorizations, nor how many of these providers have annual revenues of
no more than $15 million. One firm has over $15 million in revenues. In
addition, the Commission does not know how many of these firms have
1,500 or fewer employees. The Commission assumes, for purposes of this
analysis, that all of the remaining existing extended implementation
authorizations are held by small entities.
40. Advanced Wireless Services. In 2008, the Commission conducted
the auction of Advanced Wireless Services (``AWS'') licenses.\30\ This
auction, which was designated as Auction 78, offered 35 licenses in the
AWS 1710-1755 MHz and 2110-2155 MHz bands (``AWS-1''). The AWS-1
licenses were licenses for which there were no winning bids in Auction
66. That same year, the Commission completed Auction 78. A bidder with
attributed average annual gross revenues that exceeded $15 million and
did not exceed $40 million for the preceding three years (``small
business'') received a 15 percent discount on its winning bid. A bidder
with attributed average annual gross revenues that did not exceed $15
million for the preceding three years (``very small business'')
received a 25 percent discount on its winning bid. A bidder that had a
combined total assets of less than $500 million and combined gross
revenues of less than $125 million in each of the last two years
qualified for entrepreneur status.\31\ Four winning bidders that
identified themselves as very small businesses won 17 licenses.\32\
Three of the winning bidders that identified themselves as small
business won five licenses. Additionally, one other winning bidder that
qualified for entrepreneur status won 2 licenses.
---------------------------------------------------------------------------
\30\ See AWS-1 and Broadband PCS Procedures Public Notice, 23
FCC Rcd 7496. Auction 78 also included an auction of Broadband PCS
licenses.
\31\ Id. at 7521-22.
\32\ See ``Auction of AWS-1 and Broadband PCS Licenses Closes,
Winning Bidders Announced for Auction 78, Down Payments Due
September 9, 2008, FCC Forms 601 and 602 Due September 9, 2008,
Final Payments Due September 23, 2008, Ten-Day Petition to Deny
Period'', Public Notice, 23 FCC Rcd 12749 (2008).
---------------------------------------------------------------------------
41. Rural Radiotelephone Service. The Commission has not adopted a
size standard for small businesses specific to the Rural Radiotelephone
Service.\33\ A significant subset of the Rural Radiotelephone Service
is the Basic Exchange Telephone Radio System (``BETRS'').\34\ In the
present context, the Commission will use the SBA small business size
standard applicable to Wireless Telecommunication Carriers (except
satellite), i.e., an entity employing no more than 1,500 persons.\35\
There are approximately 1,000 licensees in the Rural Radiotelephone
Service, and the Commission estimates that there are 1,000 or fewer
small entity licensees in the Rural Radiotelephone Service that may be
affected by the rules and policies adopted herein.
---------------------------------------------------------------------------
\33\ The service is defined in Sec. 22.99 of the Commission's
rules, 47 CFR 22.99.
\34\ BETRS is defined in Sec. Sec. 22.757 and 22.759 of the
Commission's rules, 47 CFR 22.757 and 22.759.
\35\ 13 CFR 121.201, NAICS code 517210.
---------------------------------------------------------------------------
42. Wireless Communications Services. This service can be used for
fixed, mobile, radiolocation, and digital audio broadcasting satellite
uses in the 2305-2320 MHz and 2345-2360 MHz bands. The Commission
defined ``small business'' for the wireless communications services
(WCS) auction as an entity with average gross revenues of $40 million
or less for each of the three preceding years, and a ``very small
business'' as an entity with average gross revenues of $15 million or
less for each of the three preceding years.\36\ The SBA has approved
these definitions.\37\ The Commission auctioned geographic area
licenses in the WCS service. In the auction, which commenced on April
15, 1997, and closed on April 25, 1997, there were seven bidders that
won 31 licenses that qualified as very small business entities, and one
bidder that won one license that qualified as a small business entity.
---------------------------------------------------------------------------
\36\ Amendment of the Commission's Rules to Establish Part 27,
the Wireless Communications Service (WCS), Report and Order, 12 FCC
Rcd 10785, 10879 para. 194 (1997).
\37\ See Letter from Aida Alvarez, Administrator, Small Business
Administration, to Amy Zoslov, Chief, Auctions and Industry Analysis
Division, Wireless Telecommunications Bureau, Federal Communications
Commission, dated December 2, 1998.
---------------------------------------------------------------------------
43. 700 MHz Guard Bands Licenses. In the 700 MHz Guard Bands Order,
the Commission adopted size standards for ``small businesses'' and
``very small businesses'' for purposes of determining their eligibility
for special provisions such as bidding credits and installment
payments.\38\ A small business in this service is an entity that,
together with its affiliates and controlling principals, has average
gross revenues not exceeding $40 million for the preceding three
years.\39\ Additionally, a ``very small business'' is an entity that,
together with its affiliates and controlling principals, has average
gross revenues that are not more than $15 million for the preceding
three years.\40\ SBA approval of these definitions is not required.\41\
An auction of 52 Major Economic Area (MEA) licenses for each of two
spectrum blocks commenced on September 6, 2000, and closed on September
21, 2000.\42\ Of the 104 licenses auctioned, 96 licenses were sold to
nine bidders. Five of these bidders were small businesses that won a
total of 26 licenses. A second auction of remaining 700 MHz Guard Bands
licenses commenced on February 13, 2001, and closed on February 21,
2001. All eight of the licenses auctioned were sold to three bidders.
One of these bidders was a small business that won a total of two
licenses.\43\ Subsequently, in the 700 MHz Second Report and Order, the
Commission reorganized the licenses pursuant to an agreement among most
of the licensees, resulting in a spectral relocation of the first set
of paired spectrum block licenses, and an elimination of the second set
of paired spectrum block licenses (many of which were already vacant,
reclaimed by the Commission from Nextel).\44\ A single licensee that
did not participate in the agreement was grandfathered in the initial
spectral location for its two licenses in the second set of paired
spectrum blocks.\45\ Accordingly, at this time there are 54 licenses in
the 700 MHz Guard Bands.
---------------------------------------------------------------------------
\38\ See Service Rules for the 746-764 MHz Bands, and Revisions
to Part 27 of the Commission's Rules, Second Report and Order, 15
FCC Rcd 5299 (2000).
\39\ Id. at 5343 para. 108.
\40\ Id.
\41\ Id. at 5343 para. 108 n.246 (for the 746-764 MHz and 776-
704 MHz bands, the Commission is exempt from 15 U.S.C. 632, which
requires Federal agencies to obtain Small Business Administration
approval before adopting small business size standards).
\42\ See ``700 MHz Guard Bands Auction Closes: Winning Bidders
Announced,'' Public Notice, 15 FCC Rcd 18026 (WTB 2000).
\43\ See ``700 MHz Guard Bands Auctions Closes: Winning Bidders
Announced,'' Public Notice, 16 FCC Rcd 4590 (WTB 2001).
\44\ See In the Matter of Service Rules for the 698-746, 747-762
and 777-792 MHz Bands, WT Docket 06-150, Second Report and Order, 22
FCC Rcd 15289, 15339-15344 paras. 118-134 (2007) (700 MHz Second
Report and Order).
\45\ Id.
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44. 700 MHz Band Commercial Licenses. There is 80 megahertz of non-
Guard Band spectrum in the 700 MHz Band that is designated for
commercial use: 698-757, 758-763, 776-787, and 788-793 MHz Bands. With
one exception, the Commission adopted criteria for defining two groups
of small businesses for purposes of determining their eligibility for
bidding credits at auction. These two categories are: (1) ``Small
business,'' which is defined as an entity with attributed average
annual
[[Page 54554]]
gross revenues that exceed $15 million and do not exceed $40 million
for the preceding three years; and (2) ``very small business,'' which
is defined as an entity with attributed average annual gross revenues
that do not exceed $15 million for the preceding three years.\46\ In
Block C of the Lower 700 MHz Band (710-716 MHz and 740-746 MHz), which
was licensed on the basis of 734 Cellular Market Areas, the Commission
adopted a third criterion for determining eligibility for bidding
credits: an ``entrepreneur,'' which is defined as an entity that,
together with its affiliates and controlling principals, has average
gross revenues that are not more than $3 million for the preceding
three years.\47\ The SBA has approved these small size standards.\48\
---------------------------------------------------------------------------
\46\ See Auction of 700 MHz Band Licenses Scheduled for Jan. 24,
2008, AU Docket No. 07-157, Notice and Filing Requirements, Minimum
Opening Bids, Reserve Prices, Upfront Payments, and Other Procedures
for Auctions 73 and 76, DA 07-4171 at para. 70 (WTB rel. Oct. 5,
2007); Reallocation and Service Rules for the 698-746 MHz Spectrum
Band (Television Channels 52-59), Report and Order, 17 FCC Rcd 1022,
1087-88 (2002).
\47\ Id. at 1088.
\48\ See Letter from Aida Alvarez, Administrator, Small Business
Administration, to Thomas Sugrue, Chief, Wireless Telecommunications
Bureau, Federal Communications Commission, dated August 10, 1999.
---------------------------------------------------------------------------
45. An auction of 740 licenses for Blocks C (710-716 MHz and 740-
746 MHz) and D (716-722 MHz) of the Lower 700 MHz Band commenced on
August 27, 2002, and closed on September 18, 2002. Of the 740 licenses
available for auction, 484 licenses were sold to 102 winning bidders.
Seventy-two of the winning bidders claimed small business, very small
business, or entrepreneur status and won a total of 329 licenses.\49\ A
second auction commenced on May 28, 2003, and closed on June 13, 2003,
and included 256 licenses: Five EAG licenses and 251 CMA licenses.\50\
Seventeen winning bidders claimed small or very small business status
and won 60 licenses, and nine winning bidders claimed entrepreneur
status and won 154 licenses.\51\
---------------------------------------------------------------------------
\49\ See ``Lower 700 MHz Band Auction Closes,'' Public Notice,
17 FCC Rcd 17272 (WTB 2002).
\50\ See ``Lower 700 MHz Band Auction Closes,'' Public Notice,
18 FCC Rcd 11873 (WTB 2003).
\51\ Id.
---------------------------------------------------------------------------
46. The remaining 62 megahertz of commercial spectrum was auctioned
on January 24 through March 18, 2008. As explained above, bidding
credits for all of these licenses were available to ``small
businesses'' and ``very small businesses.'' Auction 73 concluded with
1090 provisionally winning bids covering 1091 licenses and totaling
$19,592,420,000. The provisionally winning bids for the A, B, C, and E
Block licenses exceeded the aggregate reserve prices for those blocks.
The provisionally winning bid for the D Block license, however, did not
meet the applicable reserve price and thus did not become a winning
bid. Approximately 55 small businesses had winning bids.\52\ Currently,
the 10 remaining megahertz associated with the D block have not yet
been assigned.\53\
---------------------------------------------------------------------------
\52\ See ``Auction of 700 MHz Band Licenses Closes,'' Public
Notice, 23 FCC Rcd 4572 (WTB 2008).
\53\ See fcc.gov website at http://wireless.fcc.gov/auctions/default.htm?job=auction_summary&id=73.
---------------------------------------------------------------------------
47. Offshore Radiotelephone Service. This service operates on
several UHF television broadcast channels that are not used for
television broadcasting in the coastal areas of states bordering the
Gulf of Mexico.\54\ There is presently one licensee in this service.
The Commission does not have information whether that licensee would
qualify as small under the SBA's small business size standard for
Wireless Telecommunications Carriers (except Satellite) services.\55\
Under the SBA small business size standard, a business is small if it
has 1,500 or fewer employees.\56\
---------------------------------------------------------------------------
\54\ This service is governed by subpart I of part 22 of the
Commission's rules. See 47 CFR 22.1001-22.1037.
\55\ 13 CFR 121.201, NAICS code 517210.
\56\ Id.
---------------------------------------------------------------------------
48. Broadband Radio Service and Educational Broadband Service. The
Broadband Radio Service (``BRS''), formerly known as the Multipoint
Distribution Service (``MDS''),\57\ and the Educational Broadband
Service (``EBS''), formerly known as the Instructional Television Fixed
Service (``ITFS''),\58\ use 2 GHz band frequencies to transmit video
programming and provide broadband services to residential
subscribers.\59\ These services, collectively referred to as ``wireless
cable,'' were originally designed for the delivery of multichannel
video programming, similar to that of traditional cable systems, but
over the past several years licensees have focused their operations
instead on providing two-way high-speed Internet access services.\60\
The Commission estimates that the number of wireless cable subscribers
is approximately 100,000, as of March 2005. The SBA small business size
standard for the broad census category of Cable and Other Program
Distribution, which consists of such entities generating $13.5 million
or less in annual receipts, appears applicable to MDS and ITFS.\61\
Note that the census category of ``Cable and Other Program
Distribution'' is no longer used and has been superseded by the larger
category ``Wireless Telecommunications Carriers (except satellite).
This category provides that a small business is a wireless company
employing no more than 1,500 persons.\62\ However, since currently
available data was gathered when ``Cable and Other Program
Distribution'' was the relevant category, earlier Census Bureau data
collected under the category of ``Cable and Other Program
Distribution'' will be used here. Other standards also apply, as
described.
---------------------------------------------------------------------------
\57\ See 47 CFR part 21, subpart K; Amendment of Parts 1, 21,
73, 74 and 101 of the Commission's Rules to Facilitate the Provision
of Fixed and Mobile Broadband Access, Educational and Other Advanced
Services in the 2150-2162 and 2500-2690 MHz Bands; Part 1 of the
Commission's Rules--Further Competitive Bidding Procedures;
Amendment of Parts 21 and 74 to Enable Multipoint Distribution
Service and the Instructional Television Fixed Service Amendment of
Parts 21 and 74 to Engage in Fixed Two-Way Transmissions; Amendment
of Parts 21 and 74 of the Commission's Rules With Regard to
Licensing in the Multipoint Distribution Service and in the
Instructional Television Fixed Service for the Gulf of Mexico, 19
FCC Rcd 14165 (2004).
\58\ See 47 CFR part 74, subpart I; MDS/ITFS Order, 19 FCC Rcd
14165 (2004).
\59\ See Annual Assessment of the Status of Competition in the
Market for the Delivery of Video Programming, Eleventh Annual
Report, 20 FCC Rcd 2507, 2565 para. 131 (2006).
\60\ Id.
\61\ 13 CFR 121.201, NAICS code 515210.
\62\ 13 CFR 121.201, NAICS code 517210.
---------------------------------------------------------------------------
49. The Commission has defined small MDS (now BRS) entities in the
context of Commission license auctions. In the 1996 MDS auction,\63\
the Commission defined a small business as an entity that had annual
average gross revenues of less than $40 million in the previous three
calendar years.\64\ This definition of a small entity in the context of
MDS auctions has been approved by the SBA.\65\ In the MDS auction, 67
bidders won 493 licenses. Of the 67 auction winners, 61 claimed status
as a small business. At this time, the Commission estimates that of the
61 small business MDS auction winners, 48 remain small business
licensees. In addition to the 48 small businesses that hold BTA
authorizations, there are hundreds of MDS licensees and wireless cable
operators that did not receive their licenses as a result of the MDS
auction
[[Page 54555]]
and that fall under the former SBA small business size standard for
Cable and Other Program Distribution.\66\ Information available to us
indicates that there are approximately 850 of these licensees and
operators that do not generate revenue in excess of $13.5 million
annually. Therefore, the Commission estimates that there are
approximately 850 of these small entity MDS (or BRS) providers, as
defined by the SBA and the Commission's auction rules.
---------------------------------------------------------------------------
\63\ MDS Auction No. 6 began on November 13, 1995, and closed on
March 28, 1996. (67 bidders won 493 licenses.)
\64\ 47 CFR 21.961(b)(1).
\65\ See Amendment of Parts 21 and 74 of the Commission's Rules
with Regard to Filing Procedures in the Multipoint Distribution
Service and in the Instructional Television Fixed Service and
Implementation of Section 309(j) of the Communications Act--
Competitive Bidding, Docket No. 94-131, Report and Order, 10 FCC Rcd
9589 (1995).
\66\ Hundreds of stations were licensed to incumbent MDS
licensees prior to implementation of Section 309(j) of the
Communications Act of 1934, 47 U.S.C. 309(j). For these pre-auction
licenses, the applicable standard is SBA's small business size
standard for ``Cable and Other Program Distribution'' (annual
receipts of $13.5 million or less). See 13 CFR 121.201, NAICS code
515210.
---------------------------------------------------------------------------
50. Educational institutions are included in this analysis as small
entities; however, the Commission has not created a specific small
business size standard for ITFS (now EBS).\67\ The Commission estimates
that there are currently 2,452 EBS licenses, held by 1,524 EBS
licensees, and all but 100 of the licenses are held by educational
institutions. Thus, the Commission estimates that at least 1,424 EBS
licensees are small entities.
---------------------------------------------------------------------------
\67\ In addition, the term ``small entity'' under SBREFA applies
to small organizations (nonprofits) and to small governmental
jurisdictions (cities, counties, towns, townships, villages, school
districts, and special districts with populations of less than
50,000). 5 U.S.C. 601(4)-(6). The Commission does not collect annual
revenue data on EBS licensees.
---------------------------------------------------------------------------
51. Government Transfer Bands. The Commission adopted small
business size standards for the unpaired 1390-1392 MHz, 1670-1675 MHz,
and the paired 1392-1395 MHz and 1432-1435 MHz bands.\68\ Specifically,
with respect to these bands, the Commission defined an entity with
average annual gross revenues for the three preceding years not
exceeding $40 million as a ``small business,'' and an entity with
average annual gross revenues for the three preceding years not
exceeding $15 million as a ``very small business.'' \69\ SBA has
approved these small business size standards for the aforementioned
bands.\70\ Correspondingly, the Commission adopted a bidding credit of
15 percent for ``small businesses'' and a bidding credit of 25 percent
for ``very small businesses.'' \71\ This bidding credit structure was
found to have been consistent with the Commission's schedule of bidding
credits, which may be found at Section 1.2110(f)(2) of the Commission's
rules.\72\ The Commission found that these two definitions will provide
a variety of businesses seeking to provide a variety of services with
opportunities to participate in the auction of licenses for this
spectrum and will afford such licensees, who may have varying capital
costs, substantial flexibility for the provision of services.\73\ The
Commission noted that it had long recognized that bidding preferences
for qualifying bidders provide such bidders with an opportunity to
compete successfully against large, well-financed entities.\74\ The
Commission also noted that it had found that the use of tiered or
graduated small business definitions is useful in furthering its
mandate under Section 309(j) to promote opportunities for and
disseminate licenses to a wide variety of applicants.\75\ An auction
for one license in the 1670-1674 MHz band commenced on April 30, 2003
and closed the same day. One license was awarded. The winning bidder
was not a small entity.
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\68\ See Amendments to Parts 1, 2, 27 and 90 of the Commission's
Rules to License Services in the 216-220 MHz, 1390-1395 MHz, 1427-
1429 MHz, 1429-1432 MHz, 1432-1435 MHz, 1670-1675 MHz, and 2385-2390
MHz Government Transfer Bands, 17 FCC Rcd 9980 (2002) (Government
Transfer Bands Service Rules Report and Order).
\69\ See Reallocation of the 216-220 MHz, 1390-1395 MHz, 1427-
1429 MHz, 1429-1432 MHz, 1432-1435 MHz, 1670-1675 MHz, and 2385-2390
MHz Government Transfer Bands, WT Docket No. 02-8, Notice of
Proposed Rulemaking, 17 FCC Rcd 2500, 2550-51 paras. 144-146 (2002).
To be consistent with the size standard of ``very small business''
proposed for the 1427-1432 MHz band for those entities with average
gross revenues for the three preceding years not exceeding $3
million, the Service Rules Notice proposed to use the terms
``entrepreneur'' and ``small business'' to define entities with
average gross revenues for the three preceding years not exceeding
$40 million and $15 million, respectively. Because the Commission is
not adopting small business size standards for the 1427-1432 MHz
band, it instead uses the terms ``small business'' and ``very small
business'' to define entities with average gross revenues for the
three preceding years not exceeding $40 million and $15 million,
respectively.
\70\ See Letter from Hector V. Barreto, Administrator, Small
Business Administration, to Margaret W. Wiener, Chief, Auctions and
Industry Analysis Division, Wireless Telecommunications Bureau,
Federal Communications Commission, dated Jan. 18, 2002.
\71\ Such bidding credits are codified for the unpaired 1390-
1392 MHz, paired 1392-1395 MHz, and the paired 1432-1435 MHz bands
in 47 CFR 27.807. Such bidding credits are codified for the unpaired
1670-1675 MHz band in 47 CFR 27.906.
\72\ In the Part 1 Third Report and Order, the Commission
adopted a standard schedule of bidding credits, the levels of which
were developed based on its auction experience. Part 1 Third Report
and Order, 13 FCC Rcd at 403-04 para. 47; see also 47 CFR
1.2110(f)(2).
\73\ See Service Rules Notice, 17 FCC Rcd at 2550-51 para. 145.
\74\ See, e.g., Revision of Part 22 and Part 90 of the
Commission's Rules to Facilitate Future Development of Paging
Systems; Implementation of Section 309(j) of the Communications
Act--Competitive Bidding, WT Docket No. 96-18, PR Docket No. 93-253,
Memorandum Opinion and Order on Reconsideration and Third Report and
Order, 14 FCC Rcd 10030, 10091 para. 112 (1999).
\75\ 47 U.S.C. 309(j)(3)(B), (4)(C)-(D). The Commission will
also not adopt special preferences for entities owned by minorities
or women, and rural telephone companies. The Commission did not
receive any comments on this issue, and it does not have an adequate
record to support such special provisions under the current
standards of judicial review. See Adarand Constructors v.
Pe[ntilde]a, 515 U.S. 200 (1995) (requiring a strict scrutiny
standard of review for government mandated race-conscious measures);
United States v. Virginia, 518 U.S. 515 (1996) (applying an
intermediate standard of review to a state program based on gender
classification).
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52. Mobile Satellite Service Carriers. Neither the Commission nor
the U.S. Small Business Administration has developed a small business
size standard specifically for mobile satellite service licensees. The
appropriate size standard is therefore the SBA standard for Satellite
Telecommunications. The category of Satellite Telecommunications
``comprises establishments primarily engaged in providing
telecommunications services to other establishments in the
telecommunications and broadcasting industries by forwarding and
receiving communications signals via a system of satellites or
reselling satellite telecommunications.'' \76\ The category has a small
business size standard of $15 million or less in average annual
receipts, under SBA rules.\77\ For this category, Census Bureau data
for 2002 show that there were a total of 371 firms that operated for
the entire year.\78\ Of this total, 307 firms had annual receipts of
under $10 million, and 26 firms had receipts of $10 million to
$24,999,999.\79\ Consequently, the Commission estimates that the
majority of Satellite Telecommunications firms are small entities that
might be affected by its action.
---------------------------------------------------------------------------
\76\ U.S. Census Bureau, 2007 NAICS Definitions, ``517410
Satellite Telecommunications''; http://www.census.gov/naics/2007/def/ND517410.HTM.
\77\ 13 CFR 121.201, NAICS code 517410.
\78\ U.S. Census Bureau, 2002 Economic Census, Subject Series:
Information, ``Establishment and Firm Size (Including Legal Form of
Organization),'' Table 4, NAICS code 517410 (issued Nov. 2005).
\79\ Id. An additional 38 firms had annual receipts of $25
million or more.
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53. Internet Service Providers. In the Notice, the Commission seeks
comment on whether to extend hearing aid compatibility requirements to
entities offering access to Voice over Internet Protocol (VoIP)
applications over Wi-Fi \80\ and other wireless technologies that may
fall outside the definition of CMRS and/or the criteria in Section
20.19(a), such as those operating on networks that do not employ ``an
in-network switching facility that enables
[[Page 54556]]
the provider to reuse frequencies and accomplish seamless hand-offs.''
Such applications may be provided, for example, by Internet Service
Providers (ISPs). ISPs are Internet Publishing and Broadcasting and Web
Search Portals \81\ that provide clients access to the Internet and
generally provide related services such as web hosting, web page
designing, and hardware or software consulting related to Internet
connectivity. To gauge small business prevalence for these Internet
Publishing and Broadcasting and Web Search Portals, the Commission
must, however, use current census data that are based on the previous
category of Internet Service Providers and its associated size
standard. That standard was: All such firms having $23.5 million or
less in annual receipts. Accordingly, to use data available to us under
the old standard and Census Bureau data for 2002, there were 2,529
firms in this category that operated for the entire year.\82\ Of these,
2,437 firms had annual receipts of under $10 million, and an additional
47 firms had receipts of between $10 million and $24,999,999.
Consequently, the Commission estimates that the majority of these firms
are small entities that may be affected by its action.
---------------------------------------------------------------------------
\80\ Wi-Fi (Wireless Fidelity) is a wireless technology that is
based on the Institute of Electrical and Electronics Engineers
802.11 standards.
\81\ U.S. Census Bureau, ``Internet Publishing and Broadcasting
and Web Search Portals,'' NAICS code 519130.
\82\ U.S. Census Bureau, 2002 Economic Census, Subject Series:
Information, ``Establishment and Firm Size (Including Legal Form of
Organization),'' Table 4, NAICS code 518111 (issued Nov. 2005).
---------------------------------------------------------------------------
54. All Other Information Services. ``This industry comprises
establishments primarily engaged in providing other information
services (except new syndicates and libraries and archives).'' \83\
VoIP services over wireless technologies could be provided by entities
that provide other services such as email, online gaming, web browsing,
video conferencing, instant messaging, and other, similar IP-enabled
services. The SBA has developed a small business size standard for this
category; that size standard is $6.5 million or less in average annual
receipts.\84\ According to Census Bureau data for 1997, there were 195
firms in this category that operated for the entire year.\85\ Of these,
172 had annual receipts of under $5 million, and an additional nine
firms had receipts of between $5 million and $9,999,999. Consequently,
the Commission estimates that the majority of these firms are small
entities that may be affected by its action.
---------------------------------------------------------------------------
\83\ U.S. Census Bureau, ``2002 NAICS Definitions: 519190 All
Other Information Services'' (Feb. 2004) http://www.census.gov. The
Commission notes that the Commission has not reached conclusions as
to whether, or under what conditions, VoIP services constitute
communications or information services under the Communications Act,
and our identification of this group of small entities as providers
of ``information services'' under the Census Bureau definition is
not intended to indicate any conclusions in this regard.
\84\ 13 CFR 121.201, NAICS code 519190.
\85\ U.S. Census Bureau, 1997 Economic Census, Subject Series:
Information, ``Establishment and Firm Size (Including Legal Form of
Organization),'' Table 4, NAICS code 514199 (issued Oct. 2000). This
category was created for the 2002 Economic Census by taking a
portion of the superseded 1997 category, ``All Other Information
Services,'' NAICS code 514199. The data cited in the text above are
derived from the superseded category.
---------------------------------------------------------------------------
55. Part 15 Handset Manufacturers. Manufacturers of unlicensed
wireless handsets may also become subject to requirements in this
proceeding for their handsets used to provide VoIP applications. The
Commission has not developed a definition of small entities applicable
to unlicensed communications handset manufacturers. Therefore, the
Commission will utilize the SBA definition applicable to Radio and
Television Broadcasting and Wireless Communications Equipment
Manufacturing. The Census Bureau defines this category as follows:
``This industry comprises establishments primarily engaged in
manufacturing radio and television broadcast and wireless
communications equipment. Examples of products made by these
establishments are: Transmitting and receiving antennas, cable
television equipment, GPS equipment, pagers, cellular phones, mobile
communications equipment, and radio and television studio and
broadcasting equipment.'' \86\ The SBA has developed a small business
size standard for Radio and Television Broadcasting and Wireless
Communications Equipment Manufacturing, which is: All such firms having
750 or fewer employees.\87\ According to Census Bureau data for 2002,
there were a total of 1,041 establishments in this category that
operated for the entire year.\88\ Of this total, 1,010 had employment
of less than 500, and an additional 13 had employment of 500 to
999.\89\ Thus, under this size standard, the majority of firms can be
considered small.
---------------------------------------------------------------------------
\86\ U.S. Census Bureau, 2002 NAICS Definitions, ``334220 Radio
and Television Broadcasting and Wireless Communications Equipment
Manufacturing''; http://www.census.gov/epcd/naics02/def/NDEF334.HTM#N3342.
\87\ 13 CFR 121.201, NAICS code 334220.
\88\ U.S. Census Bureau, American FactFinder, 2002 Economic
Census, Industry Series, Industry Statistics by Employment Size,
NAICS code 334220 (rel. May 26, 2005); http://factfinder.census.gov.
The number of ``establishments'' is a less helpful indicator of
small business prevalence in this context than would be the number
of ``firms'' or ``companies,'' because the latter take into account
the concept of common ownership or control. Any single physical
location for an entity is an establishment, even though that
location may be owned by a different establishment. Thus, the
numbers given may reflect inflated numbers of businesses in this
category, including the numbers of small businesses. In this
category, the Census breaks out data for firms or companies only to
give the total number of such entities for 2002, which was 929.
\89\ Id. An additional 18 establishments had employment of 1,000
or more.
---------------------------------------------------------------------------
56. Radio and Television Broadcasting and Wireless Communications
Equipment Manufacturing. The Census Bureau defines this category as
follows: ``This industry comprises establishments primarily engaged in
manufacturing radio and television broadcast and wireless
communications equipment. Examples of products made by these
establishments are: Transmitting and receiving antennas, cable
television equipment, GPS equipment, pagers, cellular phones, mobile
communications equipment, and radio and television studio and
broadcasting equipment.'' The SBA has developed a small business size
standard for firms in this category, which is: All such firms having
750 or fewer employees.\90\ According to Census Bureau data for 2002,
there were a total of 1,041 establishments in this category that
operated for the entire year. Of this total, 1,010 had employment of
less than 500, and an additional 13 had employment of 500 to 999. Thus,
under this size standard, the majority of firms can be considered
small.
---------------------------------------------------------------------------
\90\ 13 CFR 121.201, NAICS code 334220.
---------------------------------------------------------------------------
57. Radio, Television, and Other Electronics Stores. The Census
Bureau defines this economic census category as follows: ``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.'' \91\ The SBA
has developed a small business size standard for Radio, Television, and
Other Electronics Stores, which is: All such firms having $9 million or
less in annual receipts.\92\ According to Census Bureau data for 2002,
there were 10,380 firms in this category that operated for the entire
[[Page 54557]]
year.\93\ Of this total, 10,080 firms had annual sales of under $5
million, and 177 firms had sales of $5 million or more but less than
$10 million.\94\ Thus, the majority of firms in this category can be
considered small.
---------------------------------------------------------------------------
\91\ U.S. Census Bureau, 2002 NAICS Definitions, ``443112 Radio,
Television, and Other Electronics Stores''; http://www.census.gov/epcd/naics02/def/NDEF443.HTM.
\92\ 13 CFR 121.201, NAICS code 443112.
\93\ U.S. Census Bureau, 2002 Economic Census, Industry Series:
Retail Trade, Table 4, Sales Size of Firms for the United States:
2002, NAICS code 443112 (issued Nov. 2005).
\94\ Id. An additional 123 firms had annual sales of $10 million
or more. As a measure of small business prevalence, the data on
annual sales are roughly equivalent to what one would expect from
data on annual receipts.
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4. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
58. The Commission proposes to extend broadly to providers of
wireless communications among members of the public or a substantial
portion of the public using equipment that contains a built-in speaker
and is typically held to the ear, and to the manufacturers of such
equipment, the same hearing aid compatibility rules that currently
apply to a defined category of commercial mobile radio service (CMRS).
These regulations include: (1) Requirements to deploy a certain number
or percentage of handset models that meet hearing aid compatibility
standards, (2) ``refresh'' requirements on manufacturers to meet their
hearing aid-compatible handset deployment benchmarks in part using new
models, (3) a requirement that service providers offer hearing aid-
compatible handsets with varying levels of functionality, (4) a
requirement that service providers make their hearing aid-compatible
models available to consumers for testing at their owned or operated
stores, (5) point of sale disclosure requirements, (6) requirements to
make consumer information available on the manufacturer's or service
provider's Web site, and (7) annual reporting requirements. There is a
de minimis exception from all of the requirements except reporting for
small entities, and for all entities during their first two years of
offering handsets, that offer two or fewer handset models over an air
interface. The Commission seeks comment on whether there are any
classes of handsets for which either it is technically infeasible to
meet the hearing aid compatibility requirements or satisfying those
requirements would increase costs to the point where the handsets could
not be successfully marketed. The Commission also seeks comment on the
appropriate transition period for applying hearing aid compatibility
requirements to telephones that are outside the currently covered
subset of CMRS.
59. The Commission's rules require that wireless service providers
make their hearing aid-compatible handset models available for consumer
testing in each retail store that they own or operate. The Commission
seeks comment on whether it should extend the in-store testing
requirement to some or all entities that sell handsets to consumers
through physical locations. In addition, the Commission seeks comment
about whether it should adopt a rule providing that a return policy
allowing a customer with hearing loss to return a handset without
penalty would qualify as an alternative means of satisfying the in-
store testing requirement.
60. Under the Commission's rules, handsets must be tested for
hearing aid compatibility at their maximum output power. The Commission
seeks comment on whether it should treat as hearing aid-compatible for
all purposes handsets that allow consumers to reduce the maximum
transmit power only for operations over the GSM air interface in the
1900 MHz band by up to 2.5 decibels and that meet the criteria for an
M3 rating after such power reduction. The Commission proposes that if
it were to extend the ability to meet hearing aid compatibility
standards in this manner, it should require the handset to operate at
full power when calling 911, the manufacturer or service provider would
have to disclose that activation of a special mode is required to meet
the hearing aid compatibility standard, and the device manual or
product insert would have to explain how to activate the special mode
and the possibility of a loss of coverage. The Commission seeks comment
on these and any other possible conditions on this rule change.
5. Steps Proposed To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
61. The RFA requires an agency to describe any significant,
specifically small business 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) exemption from
coverage of the rule, or any part thereof, for small entities.'' \95\
---------------------------------------------------------------------------
\95\5 U.S.C. 603(c)(1)-(c)(4).
---------------------------------------------------------------------------
62. The Commission seeks comment generally on the effect the rule
changes considered in this FNPRM would have on small entities, on
whether alternative rules should be adopted for small entities in
particular, and on what effect such alternative rules would have on
those entities. The Commission invites comment on ways in which it can
achieve its goals while minimizing the burden on small wireless service
providers, equipment manufacturers, and other entities.
63. More specifically, the Commission seeks comment on whether
there are any classes of handsets that provide wireless communications
among members of the public or a substantial portion of the public via
a built-in speaker where the equipment is typically held to the ear for
which either it is technologically infeasible to meet hearing aid
compatibility requirements or satisfying those requirements would
increase costs to the point where the handsets could not be
successfully marketed. The Commission seeks comment on whether, for
reasons of technological infeasibility or prohibitive costs, the
specific numerical benchmarks set forth in the Commission's rules or
other rule provisions cannot be applied to any class of handsets. The
Commission seeks specific evidence as to why particular requirements
cannot be met and what alternative requirements would be feasible and
appropriate. The Commission also asks commenters to suggest
alternatives that may further reduce possible burdens on small entities
regarding meeting the hearing aid compatibility requirements.
64. The Commission recognizes that it takes time for handsets with
new specifications to be designed, produced, and brought to market. The
Commission therefore seeks comment on the appropriate transition period
for applying hearing aid compatibility requirements to telephones that
are outside the subset of CMRS that is currently covered by Section
20.19(a). In recognition that smaller service providers may encounter
delays in obtaining new model handsets from manufacturers and vendors,
the Commission specifically asks whether smaller service providers
should have a longer transition period than Tier I carriers. The
Commission also asks commenters to suggest other alternative transition
periods that could further lessen the burden on small businesses.
[[Page 54558]]
65. The Commission also seeks comment as to whether the Commission
should extend the in-store testing requirement to some or all entities
other than those owned or operated by service providers that sell
handsets to consumers through physical locations. The Commission
further seeks comment, if it decides to extend this requirement to some
but not all retail outlets, on how the scope of the requirement should
be defined. Among other things, the Commission asks whether the size of
an entity should be a factor in this definition. The Commission's goal
is to arrive at a definition that is clear and easy to apply, and at
the same time closely identifies those retailers for which the benefits
of the rule outweigh the burdens while reducing the burden on small
entities. The Commission also seeks comment on alternatives to
extending the in-store testing requirement, including whether a return
policy allowing a customer with hearing loss to return a handset
without penalty should qualify as an alternative means of satisfying
the requirement. The Commission asks commenters to suggest alternatives
that may further reduce the impact on small entities.
66. Additionally, the FNPRM seeks comment on whether the Commission
should treat handsets that allow consumers to reduce the maximum
transmit power only for operations over the GSM air interface in the
1900 MHz band by up to 2.5 decibels and that meet criteria for an M3
rating after such power reduction as hearing aid-compatible for all
purposes. This rule change would ease the burden on small entities by
making it easier to satisfy hearing aid compatibility requirements for
this class of handsets.
67. Finally, if the Commission were to extend the ability to meet
hearing aid compatibility standards by allowing the user to reduce the
maximum power for GSM operations in the 1900 MHz band, it proposes to
do so subject to the same conditions that it has imposed in the context
of the de minimis rule. Thus, the handset would have to operate at full
power when calling 911, the manufacturer or service provider would have
to disclose that activation of a special mode is required to meet the
hearing aid compatibility standard, and the device manual or product
insert would have to explain how to activate the special mode and the
possibility of a loss of coverage. This rule change would ensure that
consumers have the information they need to choose and operate a
handset that will best function with their hearing aid or cochlear
implant. The Commission seeks to receive alternative proposals that
would achieve this goal while further reducing the burdens on small
business.
68. For each of the proposals in the FNPRM, the Commission seeks
discussion, and where relevant, alternative proposals, on the effect
that each prospective new requirement, or alternative rules, might have
on small entities. For each proposed rule or alternative, the
Commission seeks discussion about the burden that the prospective
regulation would impose on small entities and how the Commission could
impose such regulations while minimizing the burdens on small entities.
For each proposed rule, the Commission asks whether there are any
alternatives the Commission could implement that could achieve the
Commission's goals while at the same time minimizing the burdens on
small entities. For the duration of this docketed proceeding, the
Commission will continue to examine alternatives with the objectives of
eliminating unnecessary regulations and minimizing any significant
economic impact on small entities.
6. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
69. None.
B. Initial Paperwork Reduction Act Analysis
70. The FNPRM does not contain proposed information collection(s)
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13. 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).
C. Other Procedural Matters
1. Ex Parte Presentations
71. The rulemaking shall be treated as a ``permit-but-disclose''
proceeding in accordance with the Commission's ex parte rules. Persons
making oral ex parte presentations are reminded that memoranda
summarizing the presentations must contain summaries of the substance
of the presentations and not merely a listing of the subjects
discussed. More than a one or two sentence description of the views and
arguments presented generally is required. Other requirements
pertaining to oral and written presentations are set forth in Section
1.1206(b) of the Commission's rules.
2. Comment Filing Procedures
72. Pursuant to sections 1.415 and 1.419 of the Commission's rules,
47 CFR 1.415, 1.419, interested parties may file comments on or before
October 25, 2010, and reply comments on or before November 22, 2010.
All filings related to this Further Notice of Proposed Rulemaking
should refer to WT Docket No. 07-250. Comments may be filed using: (1)
The Commission's Electronic Comment Filing System (ECFS), (2) the
Federal Government's eRulemaking Portal, or (3) by filing paper copies.
See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR
24121 (1998).
Electronic Filers: 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.
ECFS filers must transmit one electronic copy of the
comments for WT Docket No. 07-250. In completing the transmittal
screen, filers should include their full name, U.S. Postal Service
mailing address, and the applicable docket number. Parties may also
submit an electronic comment by Internet e-mail. To get filing
instructions, filers should send an e-mail to fcc.gov">ecfs@fcc.gov, and include
the following words in the body of the message, ``get form.'' A sample
form and directions will be sent in response.
Paper Filers: Parties who choose to file by paper must
file an original and four copies of each filing. 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 the
Commission continues to experience delays in receiving U.S. Postal
Service mail). 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.
All hand-delivered or messenger-delivered paper filings
for the Commission's Secretary must be delivered to FCC Headquarters at
445 12th Street, SW., Room TW-A325, Washington, DC 20554. 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.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300
[[Page 54559]]
East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
73. Parties should send a copy of their filings to John Borkowski,
Federal Communications Commission, Room 6404, 445 12th Street, SW.,
Washington, DC 20554, or by e-mail to fcc.gov">John.Borkowski@fcc.gov. 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].
74. Documents in WT Docket No. 07-250 will be available for public
inspection and copying during business hours at the FCC Reference
Information Center, Portals II, 445 12th Street, SW., Room CY-A257,
Washington, DC 20554. The documents may also be purchased from BCPI,
telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202) 488-5562,
e-mail [email protected].
3. Accessible Formats
75. To request materials in accessible formats for people with
disabilities (Braille, large print, electronic files, audio format),
send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental
Affairs Bureau at 202-418-0530 (voice) or 202-418-0432 (TTY).
IV. Ordering Clauses
76. Accordingly, It is ordered that, pursuant to the authority of
sections 4(i), 303(r), and 710 of the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 303(r), and 610, this Further Notice of
Proposed Rulemaking is hereby adopted.
77. It is further ordered that pursuant to applicable procedures
set forth in Sections 1.415 and 1.419 of the Commission's Rules, 47 CFR
1.415, 1.419, interested parties may file comments on this Further
Notice of Proposed Rulemaking on or before October 25, 2010, and reply
comments on or before November 22, 2010.
78. It is further ordered that the Commission's Consumer &
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this FNPRM, including the Initial Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
List of Subjects in 47 CFR Part 20
Communications common carriers, Communications equipment,
Incorporation by reference, and Radio.
Federal Communications Commission.
Bulah P. Wheeler,
Deputy Manager.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR part 20 as follows:
PART 20--COMMERCIAL MOBILE RADIO SERVICES
1. The authority citation for part 20 continues to read as follows:
Authority: 47 U.S.C. 154, 160, 201, 251-254, 303, 332, and 710
unless otherwise noted.
Sec. 20.19 [Amended]
2. Amend Sec. 20.19 as follows:
a. Revise paragraph (a)(1);
b. Redesignate paragraph (a)(3) as (a)(4);
c. Add new paragraph (a)(3);
d. Revise newly designated paragraph (a)(4)(iv);
e. Add paragraph (a)(4)(v);
f. Revise paragraph (b) introductory text;
g. Add paragraph (b)(1)(iii);
h. Revise paragraph (c)(4);
i. Revise paragraph (d)(4);
j. Add paragraph (f)(3); and
k. Add paragraph (l).
Sec. 20.19 Hearing aid-compatible mobile handsets.
(a) Scope of section; definitions. (1) The hearing aid
compatibility requirements of this section apply to providers of
wireless service that can be used for voice communications among
members of the public or a substantial portion of the public, where
such service is provided over frequencies in the 800-950 MHz or 1.6-2.5
GHz bands using any air interface for which technical standards are
stated in the standard document ``American National Standard Methods of
Measurement of Compatibility Between Wireless Communication Devices and
Hearing Aids,'' American National Standards Institute (ANSI) C63.19-
2007 (June 8, 2007).
* * * * *
(3) The requirements of paragraph (l) of this section apply to all
entities that sell wireless handsets that are used in delivery of the
services specified in paragraph (a)(1) of this section to consumers
through a physical location, whether or not those entities are included
in paragraph (a)(1) or (a)(2) of this section.
(4) * * *
(iv) Service provider refers to a provider of wireless service to
which the requirements of this section apply.
(v) Tier I carrier refers to a service provider that offers
commercial mobile radio service nationwide.
(b) Hearing aid compatibility; technical standards. A wireless
handset used only over the frequency bands and air interfaces
referenced in paragraph (a)(1) of this section is hearing aid-
compatible with regard to radio frequency interference or inductive
coupling if it meets the applicable technical standard(s) set forth in
paragraphs (b)(1) and (b)(2) of this section for all frequency bands
and air interfaces over which it operates, and the handset has been
certified as compliant with the test requirements for the applicable
standard pursuant to Sec. 2.1033(d) of this chapter. A wireless
handset that incorporates an air interface or operates over a frequency
band for which no technical standards are stated in ANSI C63.19-2007
(June 8, 2007) is hearing aid-compatible if the handset otherwise
satisfies the requirements of this paragraph.
(1) * * *
(iii) GSM operations at 1900 MHz. Notwithstanding paragraphs
(b)(1)(i) and (ii) of this section, a wireless handset that operates
over the GSM air interface in the 1900 MHz frequency band is hearing
aid-compatible for radio frequency interference if;
(A) The handset enables the user optionally to reduce the maximum
power at which the handset will operate by no more than 2.5 decibels,
except for emergency calls to 911, only for GSM operations in the 1900
MHz band;
(B) The handset would meet, at a minimum, the M3 rating associated
with the technical standard set forth in ANSI C63.19-2007 (June 8,
2007) if the power as so reduced were the maximum power at which the
handset could operate; and
(C) Customers are informed of the power reduction mode as provided
in paragraph (f)(3) of this section.
* * * * *
(c) * * *
(4) All service providers. Each Tier I carrier and other service
provider must offer its customers a range of hearing aid-compatible
models with differing levels of functionality (e.g., operating
capabilities, features offered, prices). Each provider may determine
the criteria for determining these differing levels of functionality,
and must disclose its methodology to the Commission pursuant to
paragraph (i)(3)(vii) of this section.
(d) * * *
(4) All service providers. Each Tier I carrier and other service
provider must offer its customers a range of hearing aid-compatible
models with differing
[[Page 54560]]
levels of functionality (e.g., operating capabilities, features
offered, prices). Each provider may determine the criteria for
determining these differing levels of functionality, and must disclose
its methodology to the Commission pursuant to paragraph (i)(3)(vii) of
this section.
* * * * *
(f) * * *
(3) Disclosure requirement relating to handsets that allow the user
to reduce the maximum power for GSM operation in the 1900 MHz band.
Handsets that meet the technical standard for radio frequency
interference pursuant to paragraph (b)(1)(iii) of this section shall be
labeled as meeting an M3 rating.
* * * * *
(l) In-store testing. Any entity that sells wireless handsets to
consumers through a physical location must make available for consumers
to test, in each retail store that it owns or operates, all of its
handset models that comply with paragraph (b)(1) or (b)(2) of this
section.
[FR Doc. 2010-22254 Filed 9-7-10; 8:45 am]
BILLING CODE 6712-01-P