On December 13, 2023, the Virginia Electric and Power Company, doing business as Dominion Energy, notified the Coast Guard that they plan to begin construction of facilities in the Coastal Virginia Offshore Wind-Commercial Wind Farm (CVOWCWF) project area within Federal waters on the Outer Continental Shelf (OCS), specifically in the Bureau of Ocean Energy Management (BOEM) Renewable Energy Lease Area OCS-A 0483, approximately 23 nautical miles (NM) east-northeast of Virginia Beach, Virginia.

The construction of these OCS facilities, which is inherently complex because of their location offshore, presents many unusually hazardous conditions, including those presented by hydraulic pile driving hammer operations, heavy lift operations, overhead cutting operations, the risk that debris will fall, increased vessel traffic in support of construction, and the presence of stationary barges in close proximity to the facilities and each other.

The Fifth Coast Guard District Commander has determined that the establishment of temporary safety zones during construction of WTGs and substation, is warranted to ensure the safety of life, property, and the environment. Each temporary safety zone will have a 500-meter radius around an individual construction site and be enforced only during construction.

The Coast Guard is proposing this rule under the authorities provided in 14 U.S.C. 544, 43 U.S.C. 1333, and Department of Homeland Security (DHS) Delegation No. 00170.1, Revision No. 01.3. Pursuant to those authorities, 33 CFR 147.10 provides for the establishment of safety zones for non-mineral energy resource, permanent or temporary structures located on the OCS for the purpose of protecting life and property on the facilities, its appurtenances and attending vessels, or on the adjacent waters within the safety zone. A safety zone established under 33 CFR part 147 may include provisions to restrict, prevent, or control certain activities (including access by vessels or persons) to maintain safety of life, and to protect property and the environment.

The District Commander is proposing to establish 179 temporary 500-meter safety zones around the construction sites of 176 WTGs and three OSSs on the OCS from May 1, 2024, through 11:59 p.m. on May 1, 2027. Construction will take place in the CVOWCWF project area, more specifically, in the BOEM Renewable Energy Lease Area OCS-A-0483 approximately 23 NM east-northeast of Virginia Beach, Virginia, within Federal waters on the OCS.

The construction of these facilities is expected to take place in mixed phases alternating between the installation of several monopile type foundations followed by the installation of the upper structures then repeating this process throughout the project area until all 179 facilities have been completed. Each of the 179 temporary safety zones would be subject to enforcement individually, at different times, as construction progresses from one structure location to the next. The entire process of constructing an individual structure is expected to last approximately 48 hours. The Coast Guard would provide notice of each enforcement period via the Local Notice to Mariners and issue a Broadcast Notice to Mariners via marine channel 16 (VHF-FM) as soon as practicable in response to notification of the beginning of construction at an individual site. The Coast Guard is proposing this rulemaking be effective through May 1, 2027, in case there are any construction delays due to weather or other unforeseen circumstances. If the project is completed before May 1, 2027, however, enforcement of the safety zones would be suspended, and notice of such would be given via Local Notice to Mariners.

The positions of each individual safety zone proposed by this rulemaking are referred to using a unique alpha-numeric naming convention.

Consistent with size limitations on OCS safety zones in 33 CFR 147.15, the proposed safety zones would include the area within 500 meters around the center points of the positions provided in the table below while each structure is under active construction. The positions are expressed in Degree Minutes Second (DMS) based on World Geodetic System 84 (WGS 84).

The positions of the 179 proposed safety zones are shown on the chartlets below. For scaling purposes, the grid spacing is 0.95 x 0.8 NM.

Navigation in the vicinity of the proposed safety zones consists of large commercial shipping vessels, fishing vessels, cruise ships, tugs with tows, and recreational vessels.

When subject to enforcement, no unauthorized vessel or person would be permitted to enter a safety zone without obtaining permission from the Fifth Coast Guard District Commander or a designated representative. Requests for entry into the safety zone would be considered and reviewed on a case-by-case basis. Persons or vessels seeking to enter the safety zone must request authorization from the Fifth Coast Guard District Commander or designated representative via VHF-FM channel 16 or by phone at 757-398-6391 (Fifth Coast Guard District Command Center). If permission is granted, all persons and vessels shall comply with the instructions of the Fifth Coast Guard District Commander or designated representative.

The proposed regulatory text appears at the end of this document.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. A summary of our analyses based on these statutes and Executive orders follows.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).

Aligning with 33 CFR 147.15, the safety zones established would extend to a maximum distance of 500-meters around the OCS facility measured from its center point. Vessel traffic would be able to safely transit around each of the proposed safety zones, which would occupy a small, designated area in the Atlantic Ocean, without significant impediment to their voyage. These safety zones would provide for the safety of life, and the protection of property, and of the environment during the construction of each structure, in accordance with Coast Guard maritime safety missions.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

This proposed rule may affect owners or operators of vessels intending to transit or anchor in the CVOWCWF, some of which might be small entities. However, these safety zones would not have a significant economic impact on a substantial number of these entities because they would be subject to enforcement only for short, temporary periods, they would allow for deviation requests, and would not be expected to impact vessel transit significantly. Regarding the enforcement period, although these safety zones would be in effect from May 1, 2024, through May 1, 2027, vessels would only be prohibited from entering or remaining in the regulated zone during periods of actual construction activity corresponding to the period of enforcement. We expect the enforcement period at each location to last approximately 48 hours as construction progresses from one structure location to the next throughout the mixed phases. Additionally, vessel traffic could pass safely around each safety zone using an alternate route. Use of an alternate route likely would cause minimal delay for the vessel in reaching their destination depending on other traffic in the area and vessel speed. Vessels would also be able to request deviation from this rule to transit through a safety zone. Such requests would be considered on a case by-case basis and may be authorized by the Fifth Coast Guard District Commander or a designated representative. For these reasons, the Coast Guard expects any impact of this rulemaking establishing a temporary safety zone around these OCS facilities to be minimal and have no significant economic impact on small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132 (Federalism), if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal Government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the potential effects of this proposed rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the establishment of a safety zone around an OCS facility to protect life, property, and the marine environment. Normally such actions are categorically excluded from further review under paragraph L60 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

We view public participation as essential to effective rulemaking and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

Submitting comments. We encourage you to submit comments through the Federal Decision-Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2023-0985 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this proposed rule for alternate instructions.

Viewing material in docket. To view documents mentioned in this proposed rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the https://www.regulations.gov Frequently Asked Questions web page. We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

Personal information. We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have provided. For more about privacy and submissions to the docket in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 147 as follows:

Throughout this document wherever “we” or “our” is used, we mean the EPA.

The EPA is proposing to grant a request submitted by Texas Governor Greg Abbott to reclassify the San Antonio, DFW, and HGB ozone nonattainment areas from Moderate to Serious for the 2015 ozone NAAQS. The EPA is also herein outlining its interpretation that following reclassification, a state is no longer required to submit SIP revisions addressing the following requirements related to the prior reclassification level for an ozone nonattainment area: (1) a demonstration of attainment by the prior attainment date, (2) a RACM analysis tied to the prior attainment date, and (3) contingency measures specifically related to the area's failure to attain by the prior attainment date. Accordingly, if EPA were to finalize its reclassification of the San Antonio, DFW, and HGB areas to Serious for the 2015 ozone NAAQS, Texas would no longer be required to submit these three identified SIP elements as they relate to the Moderate classification level, and EPA's October 18, 2023, Finding of Failure to Submit  1 would be mooted as to these specific SIP elements.

The EPA is also proposing a deadline for the TCEQ to submit revisions to the SIP addressing the Serious area requirements for these areas; specifically, the EPA is proposing and taking comment on a range of deadlines, from 12 to 18 months from the effective date of the EPA's final rule reclassifying the San Antonio, DFW, and HGB areas as Serious, for the TCEQ to submit the revised SIPs addressing the Serious area requirements for these nonattainment areas. The EPA is also proposing a deadline for implementation of new RACT rules as expeditiously as practicable but no later than January 1, 2026. Additionally, the EPA is proposing a deadline for any new or revised Enhanced vehicle I/M programs to be fully implemented as expeditiously as practicable but no later than four years after the effective date of EPA's final rule reclassifying these areas as Serious. Lastly, the EPA is proposing a deadline for the first transportation control demonstration, as required by CAA section 182(c)(5), to be submitted two years after the attainment demonstration due date.

On October 1, 2015, the EPA strengthened the primary and secondary eight-hour ozone NAAQS from 0.075 parts per million (ppm) to 0.070 ppm (“2015 ozone NAAQS”). 2 In accordance with CAA section 107(d), the EPA must designate an area “nonattainment” if it is violating the NAAQS or if it is contributing to a violation of the NAAQS in a nearby area. With respect to the ozone NAAQS, the EPA further classifies nonattainment areas as Marginal, Moderate, Serious, Severe, or Extreme, depending upon the ozone design value (DV) for the area. 3 See CAA section 181(a)(1). As a general matter, higher classified ozone nonattainment areas are subject to a greater number of, and more stringent, CAA planning requirements than lower classified areas and are allowed more time to attain the ozone NAAQS. See, generally, subpart 2 of part D of title I of the CAA.

Effective August 3, 2018, the EPA designated and classified the DFW and HGB areas under the CAA as Marginal nonattainment for the 2015 ozone NAAQS. 4 Effective September 24, 2018, the EPA designated and classified the San Antonio area under the CAA as Marginal nonattainment for the 2015 ozone NAAQS. 5 The EPA's classification of the San Antonio, DFW, and HGB ozone nonattainment areas as Marginal established a requirement that these areas attain the 2015 ozone NAAQS as expeditiously as practicable, but no later than three years from the effective date of designation, i.e., August 3, 2021, for the DFW and HGB areas and September 24, 2021, for the San Antonio area. Consistent with CAA section 181(b)(2), the EPA is required to determine whether an area attained the ozone NAAQS by the applicable attainment date.

In October 2022, the EPA determined that the DFW and HGB areas failed to attain the 2015 ozone NAAQS by the August 3, 2021, attainment date and reclassified these areas as Moderate for the 2015 ozone NAAQS with an attainment date of August 3, 2024. In that same action, the EPA also determined that the San Antonio area failed to attain the 2015 ozone NAAQS by the September 24, 2021, attainment date and reclassified the area as Moderate for the 2015 ozone NAAQS with an attainment date of September 24, 2024 (see 87 FR 60897, October 7, 2022).

On October 13, 2023, the EPA signed a finding that 11 states failed to submit SIP revisions required by the CAA in a timely manner for certain nonattainment areas reclassified as Moderate for the 2015 ozone NAAQS. 6 This final action was effective on November 17, 2023, and triggered certain CAA deadlines for the imposition of sanctions if a state does not submit a complete SIP addressing the outstanding requirements and for the EPA to promulgate a Federal Implementation Plan (FIP) if the EPA does not approve the state's SIP revision addressing the outstanding requirements. 7

Texas is included in the October 2023 findings for failing to submit required SIP revisions for the San Antonio, DFW, and HGB areas. The required Moderate area SIP elements that the TCEQ failed to submit include Nonattainment New Source Review (NNSR), Reasonable Further Progress (RFP), the attainment demonstration, RACM, RACT, contingency measures, and Basic I/M. 8

On October 12, 2023, Texas Governor Greg Abbott submitted a request to the EPA Administrator to reclassify the San Antonio, DFW, and HGB ozone nonattainment areas from Moderate to Serious for the 2015 ozone NAAQS. 9 A Serious classification is one category higher than the current classification of Moderate. If these areas are classified as Serious, the DFW and HGB areas must attain the 2015 ozone NAAQS no later than August 3, 2027, and the San Antonio area must attain the 2015 ozone NAAQS no later than September 24, 2027.

CAA section 181(b)(3) provides for “voluntary reclassification” and states that “[t]he Administrator shall grant the request of any state to reclassify a nonattainment area in that State . . . to a higher classification. The Administrator shall publish a notice in the Federal Register of any such request and of action by the Administrator granting the request.” The EPA herein is providing such notice of the request and is proposing to grant the request from Texas. The EPA reads the relevant statutory language to provide no discretion to deny the request made in this instance.

Upon reclassification, stationary air pollution sources in the San Antonio, DFW, and HGB ozone nonattainment areas will be subject to Serious ozone nonattainment area New Source Review (NSR) and Title V permit requirements. The source applicability thresholds for major sources and major source modification emissions will be 50 tons per year (tpy) for volatile organic compounds (VOC) and nitrogen oxides (NO X ). For new and modified major stationary sources subject to review under Texas Administrative Code Title 30, Chapter 116, Section 116.150 (30 TAC 116.150) in the EPA approved SIP, 10 VOC and NO X emission increases from the proposed construction of the new or modified major stationary sources must be offset by emission reductions by a minimum offset ratio of 1.20 to 1 (see CAA section 182(c)(10)). We note that the DFW and HGB areas are classified as Severe under the 2008 ozone NAAQS and thus, the more stringent Severe area requirements are currently being implemented in those areas. 11

EPA interprets the ozone nonattainment requirements of the CAA to provide that when an ozone nonattainment area is reclassified, the attainment date for the prior classification is superseded by the attainment date for the new classification. Thus, once a nonattainment area has been reclassified and as a result has a new statutory attainment deadline, certain SIP elements (in this action, the attainment demonstration, RACM, and contingency measures for failure to attain) which are tied to the applicable attainment deadline are no longer required for the lower, superseded classification. Requiring a state to submit or EPA to act on such SIP elements would make no logical or practical sense. Generally, after EPA has determined that an area has failed to attain by its applicable attainment date, the area is reclassified. Consequently, that former, superseded classification's attainment date is in the past and is no longer applicable, and it is no longer meaningful to evaluate whether a plan demonstrates that an area would attain by that superseded date. At that point in time, no changes could be made to the attainment demonstration that would change facts that have already come to pass, i.e., that the area has failed to attain by its applicable attainment date. 12 This reasoning also applies in the case of RACM, which for ozone is submitted with the attainment demonstration demonstrating that an area has adopted all RACM necessary to demonstrate attainment as expeditiously as practicable. 13 EPA has long evaluated RACM in terms of whether there are any reasonably available control measures that could advance an area's attainment date. In the situation discussed herein, the attainment date is in the past, so it is not possible to conduct an evaluation as to whether attainment could be advanced. Accordingly, EPA interprets the CAA such that following reclassification, any required attainment demonstration and associated RACM analysis must be done with respect to the new and current applicable attainment date.

The same logic applies for voluntary reclassifications. Section 181(b)(3) of the CAA clearly authorizes states to request reclassification for an ozone nonattainment area, as Texas did here. The effect of EPA's grant of such a request would be to reclassify the area and establish a new attainment date for the higher classification, which would replace the old attainment date associated with the area's former, superseded classification. A voluntary reclassification to a higher classification could occur before the lower classification's attainment date but would still establish a new attainment date. Thus, voluntary reclassification would still render inapplicable those requirements specifically tied to the lower classification's attainment date, which would no longer be applicable. The CAA does not require attainment demonstrations (and associated RACM analysis) for attainment dates associated with classifications that are not applicable to the area. Moreover, following voluntary reclassification from Moderate to Serious before the Moderate attainment date, the EPA is no longer required to determine whether the area attained by the no longer applicable Moderate attainment date. Because the EPA would not issue such a finding of failure to attain, contingency measures for failure to attain by the Moderate attainment date no longer have logical significance. 14 Therefore, the EPA proposes that if this reclassification takes effect, the following Moderate area SIP requirements would no longer be required: (1) an attainment demonstration with respect to the Moderate attainment date, (2) a RACM analysis with respect to the Moderate attainment date, and (3) contingency measures for failure to attain by the Moderate attainment date. Texas must submit these SIP elements for the Serious classification according to the deadlines established elsewhere in this proposal. Accordingly, the EPA is proposing to determine that the October 2023 findings that EPA published with respect to SIP revisions for these three identified elements for the Moderate classification are now moot, and that the associated deadlines triggered by the October 2023 findings for imposition of sanctions or promulgation of a FIP no longer apply with respect to these three identified elements. 15

Note, however, that there remain several Moderate area SIP requirements that continue to be required after these areas are reclassified to Serious. They are unaffected because their meaning is not dependent upon the attainment date itself. These are: (1) a 15 percent rate-of-progress (ROP) plan (40 CFR 51.1310), (2) contingency measures for failure to achieve RFP, including the 15 percent rate-of-progress (ROP) requirement for Moderate areas (CAA sections 172(c)(9) and 182(c)(9)), 16 (3) a RACT demonstration (40 CFR 51.1312), (4) NNSR rules (40 CFR 51.165), and (5) a Basic I/M program (CAA section 182(b)(4) and 40 CFR 51 subpart S). Reclassification does not change the submission requirement or implementation deadlines for these SIP elements that were due for the Moderate classification for the San Antonio, DFW, and HGB areas. Changing the submission requirement or implementation deadlines for these elements would delay the implementation of these measures beyond what the CAA intended. While the CAA does provide for later attainment dates for higher classifications, it does not authorize altering requirements that came due as a result of the lower classifications aside from the very particular situation outlined for requirements that are directly dependent on the attainment date. For example, the CAA requirement in section 182(b)(2) to implement RACT for specified categories of sources is implemented and assessed based on whether the RACT rules are implementing what is economically and technologically feasible. In other words, this analysis of whether controls comprise RACT is done irrespective of the attainment deadline. There is nothing in the CAA to suggest that reclassification as Serious, and the associated change in an area's attainment date, should alter the preexisting requirement to submit a SIP implementing RACT level controls and the deadline to implement those controls. 17 This same logic applies to all the identified requirements not specifically tied to the attainment date, and the associated deadlines for imposition of sanctions and EPA's obligation to promulgate a FIP triggered by the October 2023 findings would continue to apply with respect to these elements.

The SIP requirements that apply specifically to Serious areas are listed under CAA section 182(c) and include: Enhanced monitoring (CAA section 182(c)(1); Emissions inventory and emissions statement rule (40 CFR 51.1300(p) and 40 CFR 51.1315); RFP (40 CFR 51.1310); Attainment demonstration and RACM (40 CFR 51.1308 and 40 CFR 51.1312(c)); RACT (40 CFR 51.1312); Nonattainment NSR (40 CFR 51.1314 and 40 CFR 51.165); Enhanced I/M (CAA section 182(c)(3) and 40 CFR 51 Subpart S); Clean-fuel vehicle programs (CAA section 182(c)(4);  18 and Contingency measures (CAA sections 172(c)(9) and 182(c)(9)). In addition, a demonstration evaluating the need for a transportation control measure program (CAA section 182(c)(5)) is also required. Note that the analysis addressing RACT level controls for major sources should include an evaluation of controls for sources emitting 50 tpy or more that are currently reasonably available, consistent with the definition of “major source” or “major stationary source” for areas classified as Serious. 19 The RACT analysis should also include an evaluation of any newly-identified VOC sources covered by an EPA Control Techniques Guideline, and an evaluation of controls for VOC and NO X sources emitting 100 tpy or more that may have become reasonably available since the January 1, 2023, Moderate area deadline for adopting and implementing RACT.

Consistent with the I/M regulations, for the existing I/M programs in the DFW and HGB areas, the State would need to conduct and submit a performance standard  20 modeling (PSM) analysis  21 as well as make any necessary program revisions as part of the Serious area I/M SIP submissions to ensure that I/M programs are operating at or above the Enhanced I/M performance standard level for the 2015 ozone NAAQS. 22 The State may determine through the PSM analysis that an existing SIP-approved program would meet the Enhanced performance standard for purposes of the 2015 ozone NAAQS without modification. In this case, the State could submit an I/M SIP revision with the associated performance modeling and a written statement certifying their determination in lieu of submitting new revised regulations. 23 With the passage of time and changes in fleet mix, it is appropriate for the State to confirm existing programs' compliance with the performance standard.

The State included PSM for the existing (Enhanced) I/M program in Appendix C of the SIP revisions, proposed by the State on May 31, 2023, for the DFW and HGB attainment demonstrations, and included PSM as an attachment to the I/M SIP revision, proposed by the State on May 31, 2023, for the San Antonio nonattainment area, to demonstrate that PSM is met for Basic I/M in that area. 24 The EPA will address these SIP revisions in a separate future action after the State has finalized these proposed SIP revisions and submitted them to the EPA for consideration. However, following reclassification as Serious, as outlined above for existing I/M programs, the State will need to make any necessary revisions to the proposed San Antonio Basic I/M program and submit a PSM analysis along with a written certification as part of the Serious area SIP submissions to demonstrate that the San Antonio area I/M program will be operating at or above the Enhanced I/M performance standard level for the 2015 ozone NAAQS when the Enhanced I/M program is implemented. The Enhanced I/M program requirements are to be fully implemented as expeditiously as practicable but no later than the implementation deadline determined by the final action reclassifying these areas as discussed in Section III.C.4. of this proposal.

In addition, CAA section 182(c)(5) requires that ozone nonattainment areas classified as Serious submit a demonstration of whether current aggregate vehicle mileage, aggregate vehicle emissions, congestion levels, and other relevant parameters are consistent with those used for an area's demonstration of attainment. If the demonstration shows that these transportation parameters will result in an exceedance of the projected emissions in the attainment demonstration, the State would be required to develop and submit a SIP revision within 18 months that includes transportation control measures to reduce emissions to levels consistent with the attainment demonstration.

The SIP submission deadlines for nonattainment areas initially classified as Serious for the 2015 ozone NAAQS have passed and thus, the EPA is proposing new SIP submission deadlines for the reclassified Texas areas. 25 In proposing these new deadlines, EPA is considering the statutory guidance provided in CAA section 182(i), which allows the Administrator to adjust applicable deadlines other than attainment dates for areas that are reclassified as a result of failure to attain, “to the extent such adjustment is necessary or appropriate to assure consistency among the required submissions.” EPA's proposed deadlines are also informed by the amount of time and balance of considerations, including an area's attainment date, that the CAA prescribes when new implementation plans are required to be submitted. See, e.g., CAA section 110(k)(5) (allowing EPA to “establish reasonable deadlines (not to exceed 18 months)” after notification that a SIP is inadequate); CAA section 179(d) (requiring states to submit a new SIP revision demonstrating attainment within one year of a finding that a nonattainment area has failed to attain by its attainment date). EPA also considered the time necessary for the State to adopt revisions to necessary attainment strategies, address other SIP requirements, and complete the public notice process necessary to adopt and submit timely SIP revisions. Given the Serious area attainment year of 2026 and the Serious area attainment dates in 2027, we are proposing and taking comment on a range of SIP submission deadlines from 12 to 18 months from the effective date of the EPA's final action reclassifying the San Antonio, DFW, and HGB areas as Serious. Twelve months is consistent with submission deadlines set forth in prior mandatory reclassifications for the DFW area, i.e., 12 months from the effective date of reclassification. 26 This shorter deadline would also provide for additional time for adopted control measures to influence an area's air quality and 2024-2026 attainment DV and aid in these areas' ability to attain by the Serious attainment deadline. Given the anticipated timing of these area reclassifications, an 18-month SIP submission deadline could also be reasonable, falling before the beginning of the Serious area attainment year (January 1, 2026) and increasing the State's available time for assessing, adopting, and implementing emission reduction measures such that these areas can meet the ozone NAAQS expeditiously. Therefore, we are proposing and taking comment on a range of deadlines, from 12 to 18 months from the effective date of reclassification, for submission of the revised SIPs for the San Antonio, DFW, and HGB Serious nonattainment areas. We request that comments on the deadline for submission of the revised SIPs be accompanied by justification for the commenter's position. We will review comments received during the comment period and determine the appropriate SIP submission deadline in our final action for these Serious area submission requirements.

With respect to implementation deadlines, the EPA's implementing regulations for the 2015 ozone NAAQS require that, for RACT required pursuant to reclassification, the state shall provide for implementation of such RACT as expeditiously as practicable, but no later than the start of the attainment year ozone season associated with the area's new attainment deadline, or January 1 of the third year after the associated SIP revision submittal deadline, whichever is earlier; or the deadline established by the Administrator in the final action issuing the area reclassification (see 40 CFR 51.1312(a)(3)(ii)). The modeling and attainment demonstration requirements for 2015 ozone NAAQS areas classified Moderate or higher require that a state must provide for implementation of all control measures needed for attainment no later than the beginning of the attainment year ozone season, notwithstanding any alternative deadline established per 40 CFR 51.1312 (see 40 CFR 51.1308(d)).

In the case of the potential reclassified Serious areas addressed in this proposal, the start of the ozone season varies among the areas—January for the HGB area and March for the DFW and San Antonio areas (see 40 CFR part 58, appendix D, section 4.1, Table D-3). 27 Per 40 CFR 51.1312(a)(3)(ii), and consistent with CAA section 182(i)'s provision that EPA may adjust deadlines for mandatorily reclassified areas as necessary and appropriate “to assure consistency among the required submissions” the EPA is proposing a consistent single RACT implementation deadline for all the areas addressed in this proposal, that RACT be implemented as expeditiously as practicable but no later than the beginning of the applicable attainment year, i.e., January 1, 2026. This proposed deadline would require implementation of RACT as early as possible in the attainment year to influence an area's air quality and 2024-2026 attainment DV.

The EPA requests comment on its proposed deadline that RACT be implemented as expeditiously as practicable but no later than the beginning of the applicable attainment year, i.e., January 1, 2026.

With respect to the implementation deadline for Enhanced I/M programs, if the State intends to rely upon emission reductions from its newly required Enhanced I/M programs for the 2015 ozone NAAQS, the State would need to have such Enhanced programs fully implemented as expeditiously as practicable but no later than the beginning of the applicable attainment year, i.e., January 1, 2026. However, given the unique nature of I/M programs, there are many challenges, tasks, and milestones that must be met in establishing and implementing an Enhanced I/M program. The EPA realizes that implementing a new or revised I/M program on an accelerated timeline may be difficult to achieve in practice so, if the State does not intend to rely upon emission reductions from its Enhanced I/M programs in SIPs demonstrating attainment or RFP, we are proposing to allow any new or revised Enhanced I/M programs to be fully implemented no later than 4 years after the effective date of reclassification, explained as follows.

Under CAA section 182(i), reclassified areas are generally required to meet the requirements associated with their new classification “according to the schedules prescribed in connection with such requirements.” The I/M regulations provide such a prescribed schedule in stating that newly required I/M programs are to be implemented as expeditiously as practicable. The I/M regulations also allow areas newly required to implement Enhanced I/M up to “4 years after the effective date of designation and classification” to fully implement the I/M program. 28 With the effective date of this action expected to be in 2024, the implementation deadline for Enhanced I/M programs for the 2015 ozone NAAQS under the proposal would be in 2028. This proposed implementation deadline is beyond the Serious area attainment date of August

This is a summary of the Commission's Notice of Proposed Rulemaking ( NPRM ), in WT Docket No. 23-388; FCC 23-108, adopted December 13, 2023, and released on December 14, 2023. The full text of the document is available for download at https://docs.fcc.gov/public/attachments/FCC-23-108A1.pdf. The complete text of this document is also available for inspection and copying during normal business hours in the FCC Reference Information Center, 45 L Street NE, Room 1.150, Washington, DC 20554, (202) 418-0270.

Regulatory Flexibility Act: The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an agency prepare a regulatory flexibility analysis for notice-and-comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) concerning the possible impact of the rule and policy changes contained in this Notice of Proposed Rulemaking. Written public comments are requested on the IRFA. Comments must be by the deadlines for comments on this Notice of Proposed Rulemaking indicated in the DATES section of this document and must have a separate and distinct heading designating them as responses to the IRFA and must be filed in WT Docket No. 23-388.

Paperwork Reduction Act: This document contains proposed modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. If the Commission adopts any new or revised information collection requirements, the Commission will publish a notice in the Federal Register inviting the general public and the Office of Management and Budget to comment on the information collection requirements. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.

Ex Parte Rules: This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda, or other filings in the proceeding, then the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with 47 CFR 1.1206(b). In proceedings governed by 47 CFR 1.49(f), or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding and must be filed in their native format ( e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

Providing Accountability Through Transparency Act: The Providing Accountability Through Transparency Act, Public Law 118-9, requires each agency, in providing notice of a rulemaking, to post online a brief plain-language summary of the proposed rule. The required summary of this Notice of Proposed Rulemaking is available at https://www.fcc.gov/proposed-rulemakings.

1. The Commission has a longstanding commitment to ensuring that all Americans, including those with disabilities, are able to access communications services on an equal basis. The recent pandemic highlighted just how important equal access to communications services is for individual well-being as well as the day-to-day functioning of American society. The Commission's commitment to ensuring accessibility for all Americans includes ensuring those with hearing loss—more than 37.5 million Americans—have equal access to communications services as required by section 710 of the Communications Act. This section directs the Commission to facilitate compatibility between wireless handset models and hearing aids. In fulfilling this statutory directive, the Commission is committed to ensuring that its wireless hearing aid compatibility provisions keep pace both with the ways handset models couple with hearing devices and requiring all handset models to be hearing aid compatible. It is with these objectives in mind that the Commission initiates today's rulemaking.

2. Specifically, the Commission issues this Notice of Proposed Rulemaking to develop a record with respect to a proposal submitted to the Commission by the Hearing Aid Compatibility (HAC) Task Force on how the Commission can achieve its long held goal of a 100% hearing aid compatibility benchmark for all handset models offered in the United States or imported for use in the United States. The HAC Task Force is an independent organization composed of groups who represent the interests of people with hearing loss, wireless service providers, and wireless handset manufacturers that was formed for the purpose of reporting to the Commission on whether requiring 100% of all handset models to be certified as hearing aid compatible is an achievable objective. The Task Force's Final Report represents a consensus proposal for how the Commission can achieve this objective. The Commission proposes to adopt the Task Force's proposal with certain modifications in order to ensure that all handset models provide full accessibility for those with hearing loss while at the same time ensuring that its rules do not discourage or impair the development of improved technology.

3. Specifically, the Commission tentatively concludes that requiring 100% of all handset models to be certified as hearing aid compatible is an achievable objective under the factors set forth in section 710(e) of the Communications Act. As part of this determination, the Commission seeks comment on adopting the more flexible “forward-looking” definition of hearing aid compatibility that the HAC Task Force recommends. This determination also includes a proposal to broaden the current definition of hearing aid compatibility to include Bluetooth connectivity technology and to require at least 15% of offered handset models to connect to hearing aids through Bluetooth technology as an alternative to or in addition to a telecoil. The Commission seeks comment on the Bluetooth technology that it should utilize to meet this requirement and how it should incorporate this requirement into its wireless hearing aid compatibility rules.

4. Further, the Commission explores ways to reach the 100% compatibility benchmark, and it proposes a 24-month transition period for handset manufacturers; a 30-month transition period for nationwide service providers; and a 42-month transition period for non-nationwide service providers to transition to a 100% hearing aid-compatible handset standard for all handset models offered for sale in the United States or imported for use in the United States. The Commission seeks comment on certain implementation proposals and updates to the wireless hearing aid compatibility rules related to these proposals. These proposals include requirements for hearing aid compatibility settings in handset models, revised website posting, labeling and disclosure rules, and revised reporting requirements along with seeking comment on renaming its § 20.19 rules to better reflect what this section covers.

5. The Commission's proposals are based on the results of collaborative efforts of members of the HAC Task Force who worked together over a period of years to reach a consensus proposal on how best to ensure that all new handset models meet the needs of those with hearing loss. The revisions that the Commission proposes today to its wireless hearing aid compatibility rules would ensure greater access to wireless communication services for Americans with hearing loss and the ability of these consumers to consider the latest and most innovative handset models for their needs.

6. Over time, the Commission has progressively increased the deployment benchmarks for hearing aid-compatible wireless handset models. In 2016, the Commission reconfirmed its commitment to pursuing 100% hearing aid compatibility to the extent achievable. The 2016 HAC Order supported this objective by increasing the number of hearing aid-compatible handset models that handset manufacturers and service providers were required to offer by adopting two new handset model deployment benchmarks. After a two-year transition for handset manufacturers, and with additional compliance time for service providers, the then-applicable handset model deployment benchmarks were increased to 66%. After a five-year transition period for handset manufacturers, and with additional compliance time for service providers, the 66% handset model deployment benchmarks were increased to 85%.

7. In this same order, the Commission established a process for determining whether a 100% hearing aid compatibility requirement is “achievable.” The Commission stated that it wanted to continue the “productive collaboration between stakeholders and other interested parties” that had been part of the process for enacting the two new handset model deployment benchmarks. The Commission noted the stakeholders' proposal to form a task force independent of the Commission to “issue a report to the Commission helping to inform” the agency “on whether 100 percent hearing aid compatibility is achievable.” Part of this process included determining whether the hearing aid compatibility requirements should be modified to include alternative technologies such as Bluetooth. The Commission stated that it was deferring action on compliance processes, legacy models, burden reduction, the appropriate transition periods, and other implementation issues until after it received the HAC Task Force's Final Report on achievability. The Commission specified that it intended to decide by 2024 whether to require 100% of covered wireless handset models to be hearing aid compatible. The Commission indicated that it would make its determination as to whether this goal is achievable by relying on the factors identified in section 710(e) of the Communications Act. After the 2016 HAC Order was released, sstakeholders convened the independent Task Force and filed progress updates with the Commission.

8. In 2018, the Commission imposed new website posting requirements and took steps to reduce regulatory burden on service providers by allowing them to file a streamlined annual certification under penalty of perjury stating their compliance with the Commission's hearing aid compatibility requirements. As part of the 2018 HAC Order, the Commission noted that, in the 100% hearing aid compatibility docket, it was considering broader changes to the hearing aid compatibility rules that may be appropriate in the event it required 100% of covered handset models to be hearing aid compatible. The Commission indicated that the website, record retention, and certification requirements it was adopting as part of the 2018 HAC Order would remain in place unless and until the Commission took further action in the 100% hearing aid compatibility docket and that its decisions did not “prejudge any further steps we may take to modify our reporting rules in that proceeding.”

9. In February 2021, the Commission adopted the 2019 ANSI Standard for determining hearing aid compatibility. The 2019 ANSI Standard was to replace the existing 2011 ANSI Standard after a two-year transition period that was set to end on June 5, 2023. Like the 2011 ANSI Standard, the 2019 ANSI Standard addresses acoustic and inductive coupling between wireless handset models and hearing aids but uses heightened testing methodologies intended to ensure handset models offer a better listening experience for consumers. In addition, the 2019 ANSI Standard includes for the first time a volume control requirement. The standard specifically references the TIA 5050 Standard that addresses volume control requirements for wireless handset models. As part of the order adopting the 2019 ANSI Standard and the related TIA 5050 Standard, the Commission reiterated its goal “to continue on the path to making 100% of wireless handsets hearing aid compatible.”

10. In December 2022, the HAC Task Force filed its Final Report with the Commission, which makes five central recommendations. The report recommends that the Commission: (1) adopt a more flexible, forward-looking definition of hearing aid compatibility; (2) adjust current technical standards; (3) allow for exploration of changes in coupling technology ( e.g., by additional exploration of Bluetooth and alternative technologies); (4) allow reliance on information linked in the Commission's Accessibility Clearinghouse; and (5) set a 90-day shot clock for the resolution of petitions for waiver of the hearing aid compatibility requirements.

11. The Final Report also recommends that the Commission grant the volume control waiver request that the Alliance for Telecommunications Industry Solutions (ATIS) filed the same day that the HAC Task Force filed its Final Report. In its waiver request, ATIS asserted that the testing performed by the Task Force revealed that the TIA 5050 Standard for volume control was fundamentally flawed because it required the use of a pulsed-noise signal, which ATIS claimed was insufficiently voice-like to be compatible with many modern codecs. ATIS also stated that the standard's use of a pulsed-noise signal resulted in none of the handsets that it tested passing the standard. As a result, ATIS requested that the Commission allow handsets to be certified as hearing aid compatible using a modified volume control testing methodology.

12. On March 23, 2023, the Wireless Telecommunications Bureau (WTB) released a Public Notice seeking comment on the HAC Task Force's Final Report. The Public Notice sought comment generally on the report's recommendations and whether they furthered the Commission's goal of attaining 100% hearing aid compatibility. The Public Notice also asked whether the report's recommendations were consistent with the policy goals the Commission has historically outlined in its hearing aid compatibility-related proceedings and with the Commission's statutory duties under section 710 of the Communications Act of 1934, as amended. The Commission received three comments and three replies in response to the Public Notice.

13. On April 14, 2023, WTB released an order extending the transition period for exclusive use of the 2019 ANSI Standard from June 5, 2023 to December 5, 2023. WTB took this step to ensure that handset manufacturers could continue to certify new handset models with hearing aid compatibility features under the 2011 ANSI Standard while the Commission considered ATIS's waiver petition. WTB stated that continuing to allow new handset models to be certified as hearing aid compatible is essential as the Commission moves to its goal of all handset models being hearing aid compatible.

14. On September 29, 2023, WTB conditionally granted in part ATIS's request for a limited waiver of the 2019 ANSI Standard's volume control testing requirements. Under the terms of the waiver, a handset model may be certified as hearing aid compatible under the 2019 ANSI Standard if it meets the volume control testing requirements described in the order as well as all other aspects of the 2019 ANSI Standard. This waiver will remain in place for two years to allow time for the development of a new, full volume control standard and for its incorporation into the wireless hearing aid compatibility rules.

15. Below, the Commission tentatively concludes that a 100% hearing aid compatibility requirement for wireless handset models offered in the United States or imported for use in the United States is an achievable goal. The Commission seeks comment on ways to achieve this goal, including seeking comment on a more flexible, forward-looking definition of hearing aid compatibility, as recommended by the HAC Task Force. In addition, consistent with the HAC Task Force's recommendation, the Commission proposes to broaden the definition of hearing aid compatibility to include Bluetooth connectivity technology. The Commission proposes to implement this revised definition by requiring at least 15% of offered handset models to connect to hearing aids through Bluetooth technology as an alternative to or in addition to a telecoil. The Commission also seeks comment on the Bluetooth technology that it should utilize to meet this requirement and how it should adopt this requirement into its wireless hearing aid compatibility rules. The Commission furthers explore ways to reach the 100% compatibility benchmark as well as the appropriate transition period for reaching that benchmark. In addition, the Commission seeks comment on implementation of these proposals and updates to the wireless hearing aid compatibility rules, including proposed requirements for hearing aid compatibility settings in handset models, updates to website posting, labeling and disclosure, and revised reporting requirements. Finally, the Commission seeks comment on renaming its hearing aid compatibility rules to reflect more accurately what those rules cover.

16. In the 2016 HAC Order, the Commission stated that by 2024, it would make a determination of whether 100% hearing aid compatibility is achievable based on the factors identified in section 710(e) of the Communications Act. The Commission noted that commenters recommend that the Commission use a section 710 analysis (as opposed to the achievability requirements of sections 716 and 718) to determine whether a 100% standard is achievable. The Commission found that this approach was consistent with the analysis it undertook previously when adopting modifications to the then-current deployment benchmarks. The HAC Task Force's Final Report did not directly address achievability under the section 710(e) factors, and the Commission did not receive comments addressing these factors in response to WTB's Public Notice seeking comment on the HAC Task Force's Final Report.

17. The Commission tentatively concludes that requiring 100% of all handset models to be certified as hearing aid compatible is an achievable objective under the factors in section 710(e) of the Communications Act. Section 710(e) requires the Commission, in establishing regulations to help ensure access to telecommunications services by those with hearing loss, to “consider costs and benefits to all telephone users, including persons with and without hearing loss,” and to “ensure that regulations adopted to implement [the Hearing Aid Compatibility Act] encourage the use of currently available technology and do not discourage or impair the development of improved technology.” It further directs the Commission to use appropriate timetables and benchmarks to the extent necessary due to technical feasibility or to ensure marketability or availability of new technologies to users.

18. The Commission tentatively concludes that the benefits to all handset users of adopting a 100% compliance standard for handset models offered in the United States or imported for use in the United States would exceed the costs. The Commission anticipates that adopting a 100% compliance standard would provide significant benefits to those with hearing loss by ensuring that a greater share of handset models for purchase are hearing aid compatible. At the same time, the Commission does not expect that adopting the 100% standard would impose undue burdens on manufacturers or service providers, as the vast majority of new handset models are already hearing aid compatible today.

19. The HAC Task Force's Final Report found that, as of August 2022, about 93% of wireless handset models offered by manufacturers were already hearing aid compatible, which exceeds the benchmarks in the Commission's current rules. The Commission does not anticipate large costs for those with or without hearing loss if non-compliant models are discontinued, considering the overwhelming share of wireless handset models are already hearing aid compatible. Given the existing availability of hearing aid-compatible handset models, the Commission seeks comment on its tentative conclusion and on any specific burden or cost that a 100% compliance standard would impose on manufacturers and service providers. The Commission also seeks comment on the extent to which a 100% compliance standard would reduce the affordability of lowest-cost handset models and adversely affect low-income persons.

20. In addition, the Commission tentatively concludes that adopting a 100% compliance standard would encourage the use of currently available technology and would not discourage or impair the development of improved technology. Handset manufacturers, service providers, and consumer organizations that compose the HAC Task Force all unanimously support the Task Force's consensus proposal for achieving 100% compliance, and the Task Force's Final Report provides no indication or evidence that adopting the new standard would discourage the use of currently available technology or the development of improved technology. To the contrary, the Task Force's Final Report suggests that revising the wireless hearing aid compatibility rules to permit the use of Bluetooth as a coupling method would better align the Commission's requirements with current consumer preferences, as Bluetooth has become an increasingly popular method for pairing hearing aid devices to wireless handsets. The Commission seeks comment on this tentative conclusion.

21. Further, with respect to its tentative conclusion regarding the impact of a 100% requirement on technology, the Commission specifically seeks comment on whether allowing Bluetooth coupling as a way to achieve hearing aid compatibility or as an alternative or replacement for telecoil coupling would satisfy relevant statutory criteria. To permit the use of Bluetooth coupling as an alternative or as a replacement for telecoil coupling, is it sufficient for the Commission to find that Bluetooth coupling meets the achievability factors of section 710(e)? If so, commenters should explain how Bluetooth coupling meets the requirements of section 710(e) or why this method does not meet these statutory requirements. Are there other statutory requirements that Bluetooth coupling must meet in order for the Commission to allow its use as an alternative or replacement for telecoil coupling? If so, commenters should explain why Bluetooth coupling meets or does not meet these other statutory requirements.

22. Finally, the Commission tentatively concludes that adopting a 100% compliance standard after a reasonable transition period meets the requirements of section 710(e) that the Commission “use appropriate timetables or benchmarks to the extent necessary (1) due to technical feasibility, or (2) to ensure the marketability or availability of new technologies to users.” The transition periods that the Commission proposes below will expand access to hearing aid-compatible handset models while giving manufacturers and service providers sufficient notice and lead time to build hearing aid compatibilities into all future handset models rather than just a percentage of handset models. The Commission seeks comment on this tentative conclusion. Do commenters agree with the Commission's analysis and on the costs and benefits of its proposed finding? Given the current number of handset manufacturers who already include hearing aid compatibility in all of their handset models, would the Commission's finding adversely impact the ability of handset manufacturers to innovate and create new products? If so, how would shifting to a 100% requirement curtail innovation? Similarly, would requiring hearing aid compatibility in all handset models impose an undue burden on those handset manufacturers who currently do not meet this mark, or otherwise create disruptions in the competitive marketplace?

23. As a threshold question for implementing a 100% hearing aid compatibility requirement, the Commission seeks comment on the appropriate definition of hearing aid compatibility for wireless handsets. Specifically, the Commission seeks comment on expanding the definition of hearing aid compatibility to reflect changing coupling technologies. First, the Commission seeks comment on adopting the HAC Task Force's recommended “flexible” hearing aid compatibility definition. Next, the Commission proposes to expand the definition to include Bluetooth connectivity and to require a certain percentage of offered handset models to include Bluetooth connectivity technology. As part of that proposal, the Commission seeks comment on which Bluetooth technologies it should recognize and how it should adopt these technologies into its rules.

24. Background. The Commission's existing wireless hearing aid compatibility rules do not contain an express definition of hearing aid compatibility in the definitional section. Rather, the Commission's rules provide that a handset model is considered to be hearing aid compatible if it has been certified as such under a Commission-approved technical standard that the Commission has incorporated by reference into the rules through notice and comment rulemaking procedures. As of December 5, 2023, a new handset model can be certified as hearing aid compatible only if it meets the acoustic and inductive coupling requirements of the 2019 ANSI Standard and applicable volume control requirements.

25. The HAC Task Force recommends that the Commission define hearing aid compatibility in a more flexible manner than whether a handset model merely meets the criteria of a technical certification standard that the Commission has incorporated by reference into its rules. Specifically, the Task Force “encourages the Commission to adopt a forward-looking, flexible definition” of hearing aid compatibility “that reflects changing technologies while abiding by Congress's direction in the statute.” Specifically, the Task Force recommends that a hearing aid-compatible handset model be defined as a handset model that: (1) has an internal means for compatibility; (2) meets established technical standards for hearing aid coupling or compatibility; and (3) is usable.

26. In the Public Notice, WTB sought comment on whether the Task Force's proposed revised definition of hearing aid compatibility would be consistent with the Commission's goal of ensuring that consumers have access to handset models that are fully hearing aid compatible. WTB asked whether the proposed definition would allow the Commission to determine hearing aid compatibility with certainty and whether a definition that makes general reference to “established technical standards for hearing aid coupling or compatibility” would be consistent with the Administrative Procedure Act (APA) or other legal requirements. In response to the Public Notice, the Consumer Technology Association (CTA) expresses support for the Task Force's proposed definition, arguing that a more flexible approach encourages innovation while ensuring objective testing standards. In reply comments, the Task Force states that the definition of hearing aid compatibility should incorporate current and alternative hearing aid compatibility technologies.

27. HAC Task Force Definition. The Commission seeks comment on the HAC Task Force proposed definition of hearing aid compatibility, including whether it could adopt the definition in a manner that is consistent with the statutory requirements of section 710(c) of the Communications Act. Section 710(c) provides that “[t]he Commission shall establish or approve such technical standards as are required to enforce this section.” Further, this section states that “[a] telephone or other customer premises equipment that is compliant with relevant technical standards developed through a public participation process and in consultation with interested consumer stakeholders . . . will be considered hearing aid compatible for purposes of this section.” It also states that “[t]he Commission shall consult with the public, including people with hearing loss, in establishing or approving such technical standards.” Finally, this section states that “[t]he Commission shall remain the final arbiter as to whether the standards meet the requirements of this section.”

28. Is the more flexible definition of hearing aid compatibility that the Task Force proposes consistent with section 710(c)? Does section 710(c) require the Commission to continue to define hearing aid compatibility through technical standards that the Commission incorporates by reference into its rules or does it permit the Commission to recognize technical standards that industry and consumers are using for hearing aid compatibility without adopting those standards through a rulemaking process? Commenters should provide a detailed analysis of why their approach is consistent with statutory requirements, including why the commenter's proposal is more consistent with the public interest than the Commission's current approach. This analysis should also explain the costs and benefits of the commenter's proposed approach versus the Commission's current approach.

29. In adopting technical standards into its hearing aid compatibility rules, the Commission has relied historically on standards that were developed by organizations composed of handset manufacturers, wireless service providers, and, in some cases, groups that represent consumers with hearing loss who, through a consensus-driven process, create or revise technical standards. The standards development process does not necessarily include an opportunity for members of the public to participate in the initial creation of new technical standards. Once these technical standards bodies have developed a new standard, they petition the Commission to adopt the new standard into the hearing aid compatibility rules. The Commission accomplishes this task in compliance with the APA and Communications Act through notice and comment rulemaking that allows the Commission to meet public participation requirements.

30. The HAC Task Force recommends, however, that the Commission adopt a more forward-looking definition of hearing aid compatibility that would allow for the express incorporation of alternative and innovative technologies that can enable compatibility between handset models and hearing aid devices. As stated above, the Task Force proposes that the Commission define a hearing aid-compatible handset model as a handset model that: (1) has an internal means for compatibility; (2) meets established technical standards for hearing aid coupling or compatibility; and (3) is usable. The Commission seeks comment on each part of the HAC Task Force's proposed definition of hearing aid compatibility, as discussed below.

31. “Internal Means of Compatibility.” The Task Force recommends that the Commission define an “internal means of compatibility” to mean that “the capability must be provided as an integral part of the phone, rather than through the use of add-on components that significantly enlarge or alter the shape or weight of the phone as compared to other phones offered by the manufacturer.” The Commission seeks comment on this aspect of the HAC Task Force's proposed definition of hearing aid compatibility. As the Task Force notes, its proposed definition of “internal means of compatibility” is based on language from the 2003 HAC Order. This Order recognized that section 710(b)(1)(B) of the Act refers to providing for internal means for effective use with hearing aids. The Commission interpreted this to mean that the capability must be provided as an integral part of the handset model, rather than through the use of add-on components that significantly enlarge or alter the shape or weight of the handset model as compared to other handset models offered by manufacturers. Commenters supporting or opposing this part of the HAC Task Force's proposed definition of hearing aid compatibility should explain why they support or oppose this part of the definition and whether it is consistent with the Commission's recognition of a possible Bluetooth coupling standard. Is this part of the Task Force's proposed definition clear and can it be applied effectively by testing organizations? Does it include the types of connectivity components that are desirable to include, and exclude those that are undesirable to include?

32. “Meets Established Technical Standards.” The Commission seeks comment on the “meets established technical standards for hearing aid coupling or compatibility” portion of the HAC Task Force's proposed definition. With respect to this portion of the definition, the Task Force states that “[a]ny established technical standard for hearing aid coupling should be interoperable, non-proprietary, and adopted by industry and consumers alike.” The HAC Task Force also “recommends that the Commission consider factors such as ease-of-use, reliability, industry adoption, and consumer use and adoption when evaluating what technical standards” would meet the proposed definition. The Commission seeks comment on this approach, particularly because use of an “established technical standards” definition would be in contrast to an approach that would seek to reference each and every possible technical standard within § 20.19 of its rules. The Commission notes that incorporating multiple standards by reference may be particularly difficult where technology is rapidly changing, new or revised standards continue to be developed, and the legal requirements for incorporating specific technical standards by reference into Commission regulations may be resource intensive and would necessarily lag behind marketplace developments.

33. If the Commission adopts this approach, how should it evaluate whether a standard is “established” and “adopted by industry and consumers alike?” What criteria should the Commission rely on to make these determinations? To be deemed “established,” would a given standard have to be adopted by all manufacturers and consumers or just a certain percentage of manufacturers and consumers, and how would the Commission measure the degree of acceptance of a standard by industry and consumers? How would testing bodies and the Commission's Office of Engineering and Technology determine compliance with such standards? Further, should the Commission qualify the term “non-proprietary” in the Task Force's proposed definition, to permit reliance on proprietary Bluetooth standards, as discussed in the next section?

34. Further, would adopting this portion of the definition be consistent with the section 710(c) requirement that a wireless handset model is hearing aid compatible if it is compliant with relevant technical standards developed through a public participation process and in consultation with interested stakeholders, including people with hearing loss, as discussed above? The Commission notes that section 710(c) appears to provide that a handset model may be deemed compatible by complying with a technical standard that has not yet been affirmatively adopted or approved by the Commission:

35. Should the Commission interpret section 710(c) to permit handset models to be designated as hearing aid compatible based on a technical standard that has been “developed through a public participation process” and in consultation with designated consumer stakeholders, even if the standard has not yet been adopted or approved by the Commission? How should the Commission define and determine compliance with such a “public participation process” and consumer consultation? Would the Commission's adoption of such a procedure be consistent with the Commission's other section 710 obligations, the Administrative Procedure Act, and the U.S. Constitution?

36. Further, would this approach be sufficiently certain for enforcement purposes as required by section 710(c)? If the Commission took this approach, how would it enforce such a standard? Alternatively, can the Commission adopt the Task Force's proposed definition, while still incorporating by reference industry-developed standards for hearing aid compatibility into its rules, consistent with its current approach?

37. “Is Usable.” Finally, the Commission seeks comment on the third aspect of the HAC Task Force's proposed definition of hearing aid compatibility. The Task Force explains that it defines “usable” in a manner consistent with the Commission's accessibility requirements. Specifically, the Task Force states that “usable” refers “to ensuring that an individual has adequate information on how to operate a product and access to the `full functionality and documentation for the product, including instructions, product information (including accessible feature information), documentation, bills and technical support which is provided to individuals without disabilities.' ” The Commission seeks comment on incorporating this aspect of the proposed definition into its rules. What does this aspect of the HAC Task Force's proposed definition add to the Commission's hearing aid compatibility rules that its rules do not already cover? Does “usable” mean anything more than complying with Commission regulations and practicing good consumer relations?

38. Office of the Federal Register Regulations. The Commission also seeks comment on the HAC Task Force's proposed definition in light of the Office of the Federal Register incorporation by reference regulations. When the Commission incorporates by reference a new hearing aid compatibility standard into its rules, it must request approval from the Director of the Federal Register by submitting a request for approval that complies with Office of the Federal Register incorporation by reference requirements. Among other requirements, the Office of the Federal Register rules state that “[i]ncorporation by reference of a publication is limited to the edition of the publication that is approved” and “[f]uture amendments or revisions of the publication are not included.” Further, the Office of the Federal Register requires that the Commission “[e]nsure that a copy of the incorporated material is on file at the Office of Federal Register.” The Commission also makes the document being incorporated by reference available for inspection in the Commission's public reference room.

39. As a result, when the Commission requests Director of the Federal Register's approval, it must ensure that the standard that it asks to be incorporated by reference is limited to the approved edition and make clear that future updates to the standard are not incorporated by reference without going through notice and comment rulemaking. Further, to ensure that any technical standard is “reasonably available” to affected parties, the Commission would ensure that a copy of the incorporated standard is on file at the Office of Federal Register and make a copy of the standard available for public inspection in its reference room. The Commission seeks comment on whether there is a way for it to continue to incorporate by reference ANSI standards for hearing aid compatibility into its rules, while allowing for a more flexible approach for alternative technologies, such as Bluetooth technologies. Is there a way to distinguish alternative coupling technologies, such as Bluetooth technologies, from the traditional ANSI coupling capabilities?

40. The Commission also seeks comment on how the Commission could comply with the Office of the Federal Register incorporation by reference regulations if it adopted a specific Bluetooth standard, such as the non-proprietary Bluetooth Low Energy Audio (Bluetooth LE Audio) and the Bluetooth Hearing Access Profile (Bluetooth HAP) standards. Could the Commission submit a copy of the Bluetooth LE Audio and Bluetooth HAP standards to the Director of the Federal Register with its request for incorporation by reference permission and then make a copy of these standards available for public inspection in the Commission's reference room? Further, how would the Commission address updates to these standards given that the Commission can only incorporate by reference an approved edition of a standard? Is there another way consistent with statutory requirements that would allow the Commission to recognize these standards without following the traditional incorporation by reference process and that would allow the standards to be updated as industry releases revised versions of these standards?

41. As part of the 2016 HAC Order, the Commission requested that the HAC Task Force consider whether the 100% hearing aid compatibility goal could be achieved in part or in whole by relying on alternative hearing aid compatibility technologies, such as Bluetooth, bearing in mind the importance of ensuring interoperability between hearing aids and alternative technologies. The Task Force's Final Report recommends that the Commission move to a hearing aid compatibility standard that requires a handset model to be able to couple with hearing aids using two of three possible methods. All handset models would have to be capable of coupling using acoustic coupling and these handset models would also have to be capable of coupling through either a telecoil that meets certification standards or through Bluetooth connectivity. In response to WTB's Public Notice seeking comment on the Task Force's recommendation, most commenters expressed support for the Task Force's proposal to permit Bluetooth connectivity to be used as an alternative coupling method to telecoils, noting that most consumers are already using hearing aids that come with Bluetooth connectivity.

42. In light of the record, the Commission proposes to expand the definition of hearing aid compatibility to include Bluetooth connectivity, and it seeks comment on the best way to accomplish this objective. Below, the Commission proposes to require handset models to connect to hearing aids through Bluetooth connectivity as an alternative to telecoil coupling on a limited basis as it continues to study this issue, as long as both types of handset models also meet applicable acoustic coupling and volume control standards. As part of its proposal, the Commission seeks comment on whether it should take a “market based” approach to Bluetooth technology whereby the Commission would not explicitly adopt or incorporate by reference a single Bluetooth connectivity technology but would allow market forces to continue to determine which Bluetooth technology handset models use to pair with hearing aids. Alternatively, the Commission seeks comment on an approach whereby the Commission would broaden the current definition of hearing aid compatibility by explicitly incorporating by reference one or more non-proprietary Bluetooth connectivity standards, such as Bluetooth LE Audio and Bluetooth HAP, into the wireless hearing aid compatibility rules, the use of which would be required on a non-exclusive basis.

43. Background. The HAC Task Force states that based on a survey that it conducted, most consumers prefer to use Bluetooth connectivity for pairing hearing aid devices with wireless handsets, as compared to acoustic and telecoil coupling methods. Further, it explains that unlike telecoils, Bluetooth audio transmission methods are expressly designed to transmit and facilitate audio. According to the HAC Task Force, consumers are increasingly using—and are increasingly finding a satisfying listening experience with using—Bluetooth connectivity. Bluetooth technology is an umbrella term for related technical standards that enable devices to communicate wirelessly. Some of these standards are proprietary standards, such as Apple's Made-for-iPhone (MFi) and Google's Audio Streaming for Hearing Aids (ASHA) standards and other standards are non-proprietary standards, such as LE Audio and Bluetooth HAP standards. The Task Force indicates that variations of these Bluetooth standards can be found in many of today's handset models. In fact, the HAC Task Force states that “[t]he vast majority of wireless handsets now include at least some type of Bluetooth audio technology, without a regulatory mandate . . . .” The Task Force expects even greater use of Bluetooth connectivity in the coming years.

44. The vast majority of commenters support the Task Force's findings with respect to Bluetooth coupling between wireless handset models and hearing aids. Bluetooth Special Interest Group, Inc. (Bluetooth SIG) states that more than 80% of hearing aids today use some form of Bluetooth technology, and that the Commission should adopt Bluetooth as a primary coupling method. CTA states that nine out of ten consumers own smartphones with Bluetooth and two-thirds report that their hearing device includes satisfactory direct Bluetooth audio streaming. Samsung expresses support for the consensus recommendation on coupling requirements and notes that Bluetooth is among the top three most frequently mentioned features included in hearing devices desired by consumers. The Mobile & Wireless Form (MWF) states that Bluetooth is a dominant wireless technology and used in over-the-counter hearing aids.

45. The Task Force's Final Report notes, however, that there is a subset of consumers that continue to use telecoils and that these consumers find telecoils to be an important feature in wireless handset models. This finding is consistent with a comment arguing that telecoil coupling facilitates interoperability, is more reliable than Bluetooth, is consistent across devices, and does not require replacing hearing aids or a handset when the other is updated. This commenter states that through its HAC rules, the Commission is helping to maintain the availability of telecoils and urges the Commission to have a 100% telecoil requirement.

46. Discussion. The Commission proposes to require some handset models to connect to hearing aids through Bluetooth connectivity as an alternative to telecoil coupling on a limited basis as it continues to study this issue. The Commission seeks comment on this proposal. The record indicates that Bluetooth coupling is presently being widely utilized by consumers to couple handsets with hearing aids and achieving positive results. Under its proposal, the Commission will maintain a telecoil requirement but require a certain percentage of handset models to use Bluetooth connectivity as an alternative to telecoil coupling as long as both types of handset models also meet applicable acoustic coupling and volume control requirements, as discussed in more detail below.

47. Specifically, the Commission seeks comment on how Bluetooth coupling compares with telecoil coupling as far as interoperability between handsets and hearing aids. Is a handset model that meets telecoil certification requirements more expensive to manufacture then a handset model that substitutes Bluetooth connectivity for a telecoil? Does one type of coupling have better sound quality or maintain its connection better than the other type of coupling? Is it easier to connect a handset to a hearing aid with a telecoil connection versus a Bluetooth connection? What are the costs and benefits of allowing Bluetooth coupling on a limited basis as an alternative to telecoil coupling? Would a gradual transition from telecoil coupling to Bluetooth coupling serve the public interest? As Bluetooth coupling becomes more accepted by consumers, will telecoil coupling become a less favorable way of connecting handsets to hearing aids as the HAC Task Force suggests?

48. The Commission is concerned with the cost to consumers of Bluetooth connectivity versus telecoil coupling. When using Bluetooth connectivity as an alternative to telecoil coupling, how frequently do consumers need to replace hearing aids or a handset when the other is updated? Similarly, does telecoil technology evolve over time, or is it a stable technology that does not change in the way Bluetooth standards are updated and therefore does not require a handset to be replaced when a consumer purchases a new hearing device with telecoil connectivity? In general, do lower priced hearing devices include telecoil or Bluetooth connectivity? Are new over-the-counter hearing aids more likely to include telecoil or Bluetooth connectivity? If they are more likely to include Bluetooth connectivity, what type of Bluetooth technology are they likely to include? How can the Commission ensure that its hearing aid compatibility rules allow consumers to have access to reasonably priced hearing aid-compatible handset models?

49. The Commission also seeks comment on the future of telecoil coupling. Is the HAC Task Force's observation that Bluetooth coupling has been steadily increasing over time while telecoil coupling has been stagnating an accurate reflection of consumer preferences and trends? Is telecoil coupling being replaced with Bluetooth connectivity in the marketplace? Would allowing market conditions to control the replacement of telecoil coupling with Bluetooth connectivity technologies in handset models protect the interests of all consumers? Will relying on market conditions—which may lead to fewer handset models with telecoil coupling—leave behind the needs of consumers who may not be able to update to the newest handset models or hearing aids or who find that telecoil coupling better meets their needs?

50. Given its proposal to require Bluetooth coupling in a certain percentage of handset models (either as an alternative to or in place of telecoil)—and in light of the various Bluetooth technologies currently in use in the market—the Commission seeks comment on how to implement Bluetooth coupling into its rules. Specifically, the Commission seeks comment on two alternative approaches to adopting such a requirement: (1) requiring a certain percentage of handset models to meet a Bluetooth technical standard (either proprietary or non-proprietary) without incorporating by reference any particular standard into its rules; or (2) requiring a certain percentage of handset models to meet a (non-proprietary) Bluetooth standard that has been specifically incorporated by reference into its rules. In considering these approaches, the Commission seeks comment on whether there is a need for it to approve and incorporate by reference particular Bluetooth technical standards into its rules for hearing aid compatibility certification or whether the Commission can adopt a Bluetooth connectivity requirement without incorporating by reference a particular standard into the rules.

51. Market Based Approach to a Bluetooth Requirement. Given the variety of Bluetooth standards that exist today—both proprietary and non-proprietary—the Commission seeks comment on an approach to implementing a Bluetooth requirement that does not mandate a particular Bluetooth connectivity technology. Under this approach, the Commission would not explicitly adopt or endorse a particular Bluetooth connectivity technology or standard but would allow manufacturers and service providers to determine which Bluetooth technology to use to satisfy the required percentage of Bluetooth-compatible handset models ( e.g., the proposed 15% requirement, as detailed below).

52. Would this approach be in the public interest? How would such an approach impact the development of Bluetooth technology in handset models? This approach appears to be consistent with the 2003 HAC Order, where the Commission noted that Congress expressly avoided technology mandates so as not to “inhibit future development” of handset models, provided they are compatible with hearing aids. Further, under this approach, the Commission could continue to monitor the development of Bluetooth connectivity between wireless handset models and hearing aids as it has been doing since the release of the 2016 HAC Order. If an issue develops in the future, the Commission could take action at that time to resolve the problem. The Commission seeks comment on this analysis.

53. The Commission also seeks comment on whether this approach is consistent with the Commission's obligations under section 710(c). Section 710(c) of the Act states that “[t]he Commission shall establish or approve such technical standards as are required to enforce this section.” If the Commission does not establish or approve a specific Bluetooth standard, how can the Commission enforce a Bluetooth connectivity requirement? For the purposes of implementing section 710(c), can a distinction be drawn between the industry-developed standards for the more traditional coupling technologies ( i.e., acoustic and inductive) and volume control on the one hand, and the standards developed for Bluetooth technology on the other hand? For example, should the fact that industry has already developed and implemented a variety of proprietary and non-proprietary standards for Bluetooth coupling impact how the Commission evaluates the need for it to adopt a Bluetooth coupling requirement into its rules? Should the Commission rely on the fact that handset manufacturers have already been including various forms of Bluetooth connectivity in their handset models without the Commission's involvement, and more recently have been including updated versions of this form of connectivity that permit lower battery usage and can allow a user to connect to assistive listening devices in movie theaters, convention centers, public transit vehicles, and other ventures?

54. Along these same lines, how would an approach that may allow manufacturers and service providers to meet Bluetooth benchmarks using proprietary standards, be consistent with the “established technical standard for hearing aid coupling compatibility” portion of the HAC Task Force's proposed definition for hearing aid compatibility? As noted above, the Task Force proposes that “[a]ny established technical standard for hearing aid coupling should be interoperable, non-proprietary, and adopted by industry and consumers alike.” If the Commission adopts this proposed definition, should it limit the permissible Bluetooth standards to non-proprietary standards? Even if the Commission does not adopt a specific Bluetooth standard, should it nevertheless stipulate that any Bluetooth standard that a manufacturer chooses to use in a handset model must at least incorporate LE Audio technology given the efficiency and quality advantages of that technology? Under a market-based approach, could the Commission encourage use of the latest non-proprietary Bluetooth standards, such as the Bluetooth LE Audio and HAP Profile?

55. Incorporation by Reference of a Non-Proprietary Bluetooth Connectivity Standard. Alternatively, the Commission seeks comment on requiring a handset model to meet a Bluetooth standard that it has incorporated by reference into its rules in order to meet a Bluetooth requirement. Under this approach, the Commission would broaden the current definition of hearing aid compatibility by explicitly incorporating by reference non-proprietary Bluetooth connectivity standards whose use would be required on a non-exclusive basis. Specifically, the Commission would explicitly incorporate by reference the non-proprietary Bluetooth LE Audio and Bluetooth HAP standards into its hearing aid compatibility rules and require their use instead of a telecoil in a manner consistent with the proposed Bluetooth requirement.

56. Under this approach, handset models could come with other Bluetooth connectivity options, such as Apple's MFi and Google's ASHA proprietary standards, but the handset models also would have to include a non-proprietary Bluetooth standard, such as Bluetooth LE Audio and Bluetooth HAP coupling abilities, in order to satisfy the Commission's certification rules. Handset models that include other Bluetooth technologies rather than the Commission endorsed technologies, such as proprietary technologies, could not be used to satisfy the Bluetooth benchmark, unless the Commission decides to allow interim use of other Bluetooth technologies to meet the Bluetooth benchmark as a means of transitioning to full utilization of the Commission endorsed Bluetooth technology. The Commission seeks comment on this approach.

57. The HAC Task Force's Final Report states that Bluetooth LE Audio is an industry standard and that handset models with Bluetooth LE Audio are likely to increase interoperability with hearing devices entering the marketplace. Further, the Final Report states that Bluetooth HAP, which extends the Bluetooth LE Audio standard, is likely to increase Bluetooth technology's popularity as a coupling method for hearing devices and wireless handsets. The Final Report states, however, that Bluetooth LE Audio and Bluetooth HAP are relatively new standards and that to ensure a seamless transition to full interoperability the Commission should allow the use of well-established standards, such as Bluetooth Classic, ASHA, and MFi in the near term.

58. As an initial matter, the Commission seeks comment on whether it is required by section 710(c) to incorporate specific Bluetooth standards by reference into its rules in order to implement a Bluetooth requirement ( e.g., the proposed 15% requirement, as detailed below), or whether it can interpret section 710(c) to allow a handset model to meet a standard that has not been affirmatively adopted or incorporated by reference into the Commission's rules. Further, what are the costs and benefits of this approach relative to the more flexible market-based approach discussed above? Does this approach balance the need to adopt specific Bluetooth standards into the Commission's rules with the need to avoid excluding other standards, the loss of which might force consumers to replace their hearing aids prematurely to avoid connectivity issues with a new handset? How would this approach affect the availability of proprietary Bluetooth standards? Do proprietary Bluetooth technologies provide superior connectivity that would be sacrificed under this approach? What are the quality differences, if any, between the various Bluetooth standards with regard to the consumer experience in coupling and utilizing such Bluetooth technology? Would this approach be feasible in view of the pace at which Bluetooth technologies change and develop? Would one of these approaches better protect the interests of consumers with hearing loss and the ability of handset manufacturers to innovate?

59. If the Commission adopts a specific non-proprietary Bluetooth standard, would the Commission run the risk of tipping the marketplace in favor of Bluetooth LE Audio and Bluetooth HAP rather than another non-proprietary Bluetooth connectivity standard? In addition to Bluetooth LE Audio and Bluetooth HAP, are there other non-proprietary Bluetooth connectivity standards that the Commission should consider incorporating by reference into the wireless hearing aid compatibility rules? Are there other non-proprietary Bluetooth standards in the development stage? How can the Commission ensure that its choice of a non-proprietary Bluetooth standard is best suited to meet the needs of consumers with hearing loss?

60. Transitional Use of Proprietary Bluetooth Standards. The Commission also seeks comment on whether it should permit the use of other Bluetooth standards, such as proprietary standards, to satisfy its certification requirements on an interim basis as the industry transitions to full use of the Bluetooth LE Audio and Bluetooth HAP. In its Final Report, the HAC Task Force states that the Commission should consider incorporating Bluetooth technology such as Apple's MFi and Google's ASHA into the Commission's rules for a period of transition. The Task Force states that Bluetooth LE Audio and Bluetooth HAP represent a long-term goal and current “widespread use” of these other Bluetooth standards “indicates that these methods should be considered to ensure a seamless transition toward full interoperability.”

61. Recently, the HAC Task Force reiterated its commitment to continuing to explore the development and inclusion of Bluetooth LE Audio and Bluetooth HAP in new handset models. How likely is it that handset manufacturers will replace proprietary Bluetooth connectivity in their handset models with non-proprietary standards and over what time period? If the Commission allows the use of proprietary Bluetooth standards to meet the Bluetooth benchmark before transitioning to exclusive use of Bluetooth LE Audio and Bluetooth HAP, how long should the transition period be? What are the costs and benefits of allowing the use of proprietary standards for a period of time while the marketplace transitions to full use of Bluetooth LE Audio and Bluetooth HAP?

62. Other Approaches to Adopting Bluetooth Standards. The Commission also seeks comment on whether the Commission should establish a Bluetooth safe harbor or allow WTB to use its delegated authority to approve new Bluetooth connectivity standards or new editions of currently adopted standards that meet certain requirements.

63. Under the safe harbor approach, the Commission would require a certain percentage of handset models to include Bluetooth LE Audio and Bluetooth HAP connectivity technologies, but the Commission would not require compliance with a certain edition or version of these technologies by referencing those editions or versions in its rules. As long as the handset model included some edition or version of the technologies, the handset model would meet certification requirements in terms of the proposal to require a certain percentage of handset models to meet Bluetooth connectivity requirements. Is the establishment of a Bluetooth safe harbor consistent with the requirements of section 710(c)? Under the safe harbor approach, how would the Commission enforce compliance with these technologies if it does not require compliance with a specific edition or version of the technologies?

64. Along these same lines, the Commission seeks comment on whether WTB could use its delegated authority under § 20.19(k) to adopt new Bluetooth connectivity technologies into the hearing aid compatibility rules or use this authority to revise the edition that could be used for certification purposes. Under this approach, the Commission could establish criteria that should guide the Bureau when making the determination of whether to approve a new Bluetooth connectivity standard or new edition of a currently approved standard. Alternatively, the Commission could adopt the Bluetooth connectivity standard and allow WTB to use its delegated authority to approve new editions of the Commission's adopted standard. WTB could make a list of approved standards publicly available that handset manufacturers could use for certification purposes.

65. If the Commission adopted this approach, would WTB be required to use notice-and-comment rulemaking procedures or could WTB release a Public Notice authorizing the use of a new Bluetooth connectivity standard or the use of a new edition of a currently approved standard? Would such an approach be consistent with section 710(c) of the Act and other statutory requirements, such as notice and comment rulemaking procedures? Would the Commission need to differentiate the process of adopting new ANSI standards from the processes of adopting new Bluetooth connectivity standards or editions? If the Commission needed to differentiate the two processes, how would the Commission make this distinction? Would the Commission need to adjust or supplement WTB's delegated authority under § 20.19(k) if it determine to use this approach?

66. Bluetooth Compliance Requirements. Finally, the Commission seeks comment on how it could ensure a handset model is in compliance with the Bluetooth standards permitted by any of the above approaches. How could the Commission ensure that a handset model complies with the Bluetooth connectivity standard that the manufacturer indicates that it meets, and how can it ensure that this standard meets minimum consumer requirements for a quality wireless connection with a hearing device?

67. The HAC Task Force suggests that a handset manufacturer should be required to submit a Bluetooth attestation as part of its FCC equipment certification application. The Commission seeks comment on this suggestion. Would the submission of an attestation be sufficient to meet statutory requirements? How could the Commission ensure that a handset model submitted with an attestation actually meets the Bluetooth connectivity standards that the manufacturer indicates is embedded within the handset model? What kind of testing does a handset model undergo in order to receive such an attestation? Should the Commission rely on the Bluetooth standard party's own testing process such that an attestation is sufficient to satisfy that process including any interoperability concerns? Even if a handset model receives an attestation, how can the Commission ensure that the standard that is incorporated into the handset model is robust enough to meet the minimum consumer needs with respect to establishing a quality connection between the handset model and a hearing device?

68. Bluetooth SIG has indicated that it has its own qualification process, which involves testing at the product level for interoperability. If the Commission adopts Bluetooth LE Audio and Bluetooth HAP standards, should the Commission rely on the Bluetooth SIG's own testing process such that an attestation is sufficient to satisfy that process including any interoperability concerns? Is there reason to believe that some Bluetooth standards bodies provide more robust testing then other standards bodies?

69. Background. The Commission's hearing aid compatibility rules require that 85% of the total number of handset models that manufacturers and service providers offer must be certified as hearing aid compatible. The Commission's rules, however, do not impose separate benchmarks for the three components of the 2019 ANSI Standard (acoustic coupling, inductive coupling, and volume control). That is, in order for a handset model to be certified as hearing aid compatible under this standard, the handset model must meet all aspects of the standard and not just certain parts of the standard. Further, the Commission's rules allow handset manufacturers and service providers to grandfather existing hearing aid-compatible handset models for benchmark purposes as long as the handset models are still offered to the public.

70. Under the HAC Task Force's 100% proposal, after the applicable transition period passes, all of the handset models that manufacturers and service providers offer in their handset portfolios would have to be certified as hearing aid compatible. The Task Force proposes, however, that a portion of handset models could be certified as hearing aid compatible by meeting only certain aspects of the 2019 ANSI Standard's requirements rather than all of the requirements as presently required. Specifically, the Task Force proposes that to meet the 100% compatibility requirement, all handset models would have to meet the 2019 ANSI Standard's acoustic coupling requirements, but only 85% of these handset models would have to continue to meet the 2019 ANSI standard's telecoil coupling requirements. The remaining 15% of these handset models would have to meet a new Bluetooth connectivity requirement. To the extent the handset model “does not pass the telecoil test, it would have to support Bluetooth, and vice-versa.” While the Task Force's Final Report does not contain a specific volume control benchmark proposal, recently members of the Task Force reiterated their commitment to working towards the goal that all new handset models will meet hearing aid compatibility requirements and that this will include an applicable volume control requirement.

71. As discussed above, the HAC Task Force has recommended that the Commission consider a “more forward-looking” definition of HAC. The Task Force asserts that its proposed 85/15% split between telecoil and Bluetooth coupling requirements is an appropriate way to reflect the popularity of Bluetooth connectivity for pairing hearing aid devices to handsets. According to a survey that it conducted, most consumers prefer to use Bluetooth connectivity for pairing hearing aid devices with wireless handsets, as compared to acoustic and telecoil coupling methods. Further, the Task Force states that unlike telecoils, Bluetooth audio transmission methods are expressly designed to transmit and facilitate audio. By contrast, the HAC Task Force explains, telecoils are a “by-product” of certain 1940s-era phone designs that later proved useful to couple to a similarly coiled piece of copper in a hearing aid. Noting that consumers are already familiar with Bluetooth technology, the Task Force reports that the vast majority of wireless handset models now include at least some type of Bluetooth audio technology. The Task Force expects even greater use of Bluetooth connectivity in the coming years and that consumers will prefer Bluetooth applications over acoustic and inductive coupling.

72. The Task Force's Final Report appears to recommend that at the end of its proposed four-year transition period for manufacturers and five-year transition period for service providers, all handset models in a manufacturer's or service provider's overall handset portfolio would have to be certified as hearing aid compatible under the 2019 ANSI Standard, subject to the percentages detailed above. The Final Report, though, is ambiguous regarding the grandfathering of existing handset models that have been certified as hearing aid compatible under older technical standards and are still being offered to the public. While the body of the Final Report does not discuss this issue, it does suggest in its Model Rule section that the current grandfathering rule be kept in place but given a new subparagraph designation. The Final Report does not explain how the grandfathering rule would operate with respect to the overall composition of a handset manufacturer's or service provider's handset portfolio after the end of the relevant transition periods.

73. In response to WTB's Public Notice seeking comment on the Task Force's Final Report, CTA, MWF, and Samsung state that they support the HAC Task Force's consensus recommendations that provide a path to 100% hearing aid compatibility. Further, CTA and Samsung state that they support the Task Force's recommendation regarding the 85% benchmark for telecoil coupling and the 15% benchmark for Bluetooth coupling. Samsung also states that the Commission should adopt a benchmark for the volume control requirement, but it does not propose a benchmark for this requirement. The HAC Task Force states that the Commission should adopt a new Bluetooth connectivity benchmark, and Bluetooth SIG states that the use of a Bluetooth coupling requirement will help the Commission achieve its 100% hearing aid compatibility objective. As noted above, however, an individual commenter argues that the Commission should adopt a 100% telecoil requirement. This commenter states that telecoil coupling facilitates interoperability, is more reliable than Bluetooth, is consistent across devices, and does not require replacing hearing aids or a handset when the other is updated. Further, this commenter states that the Commission “is helping to maintain the availability of telecoils” and that the Commission “should require telecoil technology in 100% of all mobile devices . . . and mandate a timeline for compliance.”

74. 100% Benchmark. Consistent with its tentative conclusion regarding achievability, the Commission proposes that after the expiration of the relevant transition periods, 100% of the handset models that manufacturers and service providers offer or import for use in the United States must be certified as hearing aid compatible. As part of this requirement, the Commission proposes to require all handset models offered or imported for use in the United States to have at least two forms of coupling, as proposed by the HAC Task Force: (1) 100% of handset models would be required to meet an acoustic coupling requirement; and (2) 100% of handset models would be required to meet either a telecoil or a Bluetooth coupling requirement. Specifically, at least 85% of handset models would be required to meet a telecoil requirement and at least 15% of handset models would be required to meet a Bluetooth requirement. Any handset models not meeting a telecoil requirement would be required to meet a Bluetooth requirement, and any handset models not meeting a Bluetooth requirement would be required to meet a telecoil requirement. The Commission seeks comment on this proposal in more detail below and throughout this NPRM. These handset models would have to be certified as hearing aid compatible under the requirements of part 2 subpart J—Equipment Authorization Procedures of the Commission's rules, and include the relevant test reports showing compliance with these rules and the Commission's § 20.19 hearing aid compatibility testing requirements for mobile handset models. All of these procedures must be complied with in full for a handset model to be labeled as hearing aid compatible and offered in the United States or imported for use in the United States. Once the relevant transition period ends, handset manufacturers and service providers will no longer be able to offer handset models that are not certified as hearing aid compatible.

75. The Commission seeks comment on its proposal to require all handset models that manufacturers and service providers offer in the United States or imported for use in the United States to be hearing aid compatible after the end of the applicable transition periods. Since the Commission has tentatively concluded above that 100% is achievable, and no commenters opposed or found issue with some form of a 100% requirement when WTB sought comment on the HAC Task Force's Final Report, any commenter objecting to the Commission's proposal should explain why this objective is not achievable using the statutory criteria outlined above.

76. Additionally, the Commission seeks comment below on a proposal—as well as an alternative approach—for meeting the 100% hearing aid-compatible handset portfolio requirement, including its proposed 85/15% split for telecoil and Bluetooth connectivity. Under the Commission's proposal, manufacturers and service providers could meet the 100% requirement by including grandfathered handset models that have been certified as hearing aid compatible in their overall handset portfolios as long as the handset models are still being offered in the United States or imported for use in the United States, as the Commission's current rule allows. Manufacturers and service providers could meet the 85/15% telecoil/Bluetooth requirement using new or grandfathered handset models. Alternatively, the Commission seeks comment on an approach where it would discontinue its grandfathering rule and not allow handset manufacturers and service providers to count grandfathered handset models certified under older certification standards towards the benchmark. Under this alternative, 100% of the handset models in a manufacturer's or service provider's handset portfolio would have to be certified as hearing aid compatible using the 2019 ANSI Standard's requirements, as modified by a possible telecoil and Bluetooth connectivity split.

77. Grandfathering Proposal to Reach 100%. Consistent with its existing rules, the Commission proposes to allow manufacturers and service providers to continue to offer handset models that are already certified as hearing aid compatible under older technical standards after the end of the relevant transition periods. These handset models would be grandfathered, and manufacturers and service providers could include these handset models as part of their 100% handset portfolios as long as the handset models are still being offered. Under this proposal, 100% of handset models would have to meet an acoustic coupling requirement, and could meet this requirement with handset models certified under the 2019 ANSI Standard or with grandfathered handset models ( i.e., handset models previously certified using a pre-2019 ANSI Standard). Further, all handset models would have to meet a telecoil or Bluetooth requirement, with at least 85% meeting a telecoil requirement—which could be met using handset models certified under the 2019 ANSI Standard or grandfathered handset models—and with at least 15% meeting a Bluetooth requirement. The Commission seeks comment on this proposal.

78. Under the Commission's grandfathering proposal, handset manufacturers and service providers would have in their handset portfolios handset models that have been certified under different certification standards. For instance, manufacturer and service provider handset portfolios might include handset models certified as hearing aid compatible using the 2011 ANSI Standard and other handset models certified under the 2019 ANSI Standard. With respect to handset models certified under the 2019 ANSI Standard, some of these handset models might be certified as hearing aid compatible under the conditions of WTB's volume control waiver order or, depending on timing, under a new volume control standard that the Commission has adopted. Further, if the Commission adopts the Task Force's proposal regarding the 85/15% split between telecoil and Bluetooth connectivity, manufacturer and service provider handset portfolios might include these types of handset models as well. All of these handset models could be part of a manufacturer's or service provider's 100% hearing aid-compatible handset portfolio as long as the handset models are still being offered.

79. If the Commission adopts this proposal, should it modify its grandfathering rule to allow only a certain percentage of a handset portfolio to include handset models certified under older certification standards or older volume control requirements ( e.g., the volume control waiver standard)? Should the Commission modify the grandfathering rule if it adopts a new volume control requirement to replace the waiver condition standard? How would such an approach work and would it require that certified handset models be taken out of a handset portfolio prior to the end of a handset model's product cycle? What would be the costs and benefits of such a rule and how would such a rule impact consumers, manufacturers, and service providers? Would removal of handset models certified under prior standards adversely affect consumers by prematurely removing from the market handset models that are relatively low-priced or that offer special features relied upon by certain groups of customers?

80. If the Commission adopts the Task Force's proposed 85/15% split between telecoil and Bluetooth connectivity, but allows grandfathered handset models to count towards these benchmarks, how should the Commission count handset models certified under pre-2019 ANSI Standards towards this split? Under a grandfathering approach to the 85/15% split, would handset manufacturers and service providers be likely to offer fewer new handset models with telecoil connectivity? Or are market incentives sufficient to ensure that manufacturers and service providers would continue to offer new handset models with telecoil coupling technology? What percentage of handset models have both Bluetooth connectivity and telecoil capabilities? If the Commission adopts its grandfathering proposal, should it impose a requirement on service providers that they have to offer a certain percentage of new handset models that meet telecoil requirements and the rest would have to meet Bluetooth connectivity requirements? If so, what percentage should the Commission impose and how would this percentage work with small or rural service providers that may only add one or two new handset models over a period of years? Alternatively, does the fact that a consumer can purchase a handset directly from a manufacturer and bring the handset to the service provider's network solve this problem? What are the costs and benefits to consumers to having to purchase a handset from a manufacturer and bring it to the service provider for service? What impact does this approach have on manufacturers and service providers?

81. Alternative Approach to Reach 100%. Alternatively, instead of allowing grandfathering, should the Commission require 100% of all handset models offered in the United States or imported for use in the United States to meet the 2019 ANSI Standard (or any future ANSI standards), with 100% of handset models meeting the acoustic coupling portion of the 2019 ANSI standard, at least 85% of all handsets models meeting the telecoil portion of the 2019 ANSI standard, and at least 15% meeting a Bluetooth component? Under this approach, manufacturers and service providers would no longer be able to offer handset models certified as hearing aid compatible under earlier (pre-2019) versions of the ANSI standard and would either have to remove these handset models from their handset portfolios or recertify these handset models under the 2019 ANSI Standard. The Commission seeks comment on this approach, as opposed to its proposal above to allow handset models to meet the 100% benchmark using grandfathered handset models. What are the benefits and drawbacks of such an approach? Would an approach that requires service providers and manufacturers either to retire older handset models or certify those handset models under the 2019 ANSI Standard lead to better options available in the market for consumers with hearing loss? Given the pace of technology advancement, would such an approach be feasible for manufacturers and service providers? Would it be more straightforward and thus (i) easier for manufacturers and service providers to implement; (ii) easier for consumers to understand; and (iii) easier for the Commission to enforce?

82. The Commission seeks comment on the differences between its grandfathering proposal and this alternative approach, including the costs and benefits of each option, and how either approach might impact transition time. Should the Commission consider a hybrid of the two, such as a phased approach that would enable it to reach a 100% benchmark using grandfathered handset models within a shorter period of time, with the ultimate goal of 100% of handset models meeting the 2019 ANSI Standard (or newer ANSI standards as they are developed)? For example, after one year, 75% of handset models could be grandfathered; after two years, 50%; after three years, 25%; and after four years, no grandfathered handset models could be counted towards the 100% benchmark.

83. Volume Control Benchmark. Under either the Commission's grandfathering proposal or the alternative 100% 2019 ANSI Standard approach, how should the Commission incorporate the volume control requirement into its benchmarks? As noted above, under the Commission's current rules, as of December 5, 2023, handset models can no longer be certified as hearing aid-compatible using the older 2011 ANSI Standard that does not include a volume control requirement. After this date, handset models can only be certified as hearing aid-compatible if they meet the requirements of the 2019 ANSI Standard and the related TIA 5050 Standard that sets forth volume control requirements for wireless handset models. The recently issued HAC Waiver Order, however, modified these requirements by allowing handset models to be certified as hearing aid-compatible if the handset model meets the limited volume control standard set out in that order and all other aspects of the 2019 ANSI Standard. This waiver remains in effect for a two-year period that ends on September 29, 2025.

84. If the Commission adopts an approach where all handset models must be certified as hearing aid-compatible using the 2019 ANSI Standard, as modified by the HAC Waiver Order, should it include a 100% volume control requirement at the end of the transition period? On the other hand, if the Commission allows manufacturers and service providers to meet the 100% requirement using grandfathered handset models, as it proposes above, should it impose a requirement that a certain percentage of handset models must meet the volume control portion of the 2019 ANSI Standard, as modified by the HAC Waiver Order ? Or should the Commission limit the volume control requirement to all new handset models certified as hearing aid compatible using the 2019 ANSI Standard, as modified by the HAC Waiver Order, without setting an overall volume control benchmark for the portfolio? How would the grandfathering approach—which means that not all available handset models would meet a volume control requirement—impact consumers with hearing loss?

85. How should the Commission handle the volume control requirement if the Commission adopts a new volume control standard to replace the TIA 5050 Standard, as modified by the HAC Waiver Order ? Under these circumstances, should the Commission allow a limited grandfathering of handset models that meet the HAC Waiver Order's volume control standard and all other aspects of the 2019 ANSI Standard, but not the requirements of the new volume control standard? Should the Commission impose a requirement that these types of handset models should be eliminated from handset portfolios over a certain time period, such as two years from the effective date of the new volume control standard? Alternatively, should the Commission just allow these types of handset models to be phased-out over the handset model's normal product life cycle? What are the costs and benefits to consumers and manufacturers of permitting these types of handset models to be grandfathered?

86. Telecoil/Bluetooth Benchmarks. The Commission also seeks comment on implementing its proposed 85/15% split between telecoil and Bluetooth connectivity under the two alternatives discussed above ( i.e., its grandfathering proposal and the 100% 2019 ANSI Standard approach), as well as some alternative approaches to setting benchmarks for telecoil and Bluetooth coupling. In this regard, the Commission notes that members of the HAC Task Force have recently reiterated their commitment to working towards the goal of including Bluetooth connectivity as an alternative to telecoil coupling in a certain percentage of handset models as described in the HAC Task Force's Final Report. Under either approach, how does the Commission enforce a requirement that at least 85% of handset models must meet telecoil requirements and at least 15% must meet a Bluetooth connectivity standard? Should the Commission allow a handset model that meets telecoil certification requirements and Bluetooth connectivity requirements to be counted as meeting both the telecoil and Bluetooth connectivity requirements? Should the Commission allow for some fluctuation within a range close to an 85/15% split, or should it strictly enforce that number? For example, should the Commission require that a manufacturer or service provider offer at least 85% of handset models that meet the telecoil requirements and the rest of the handset models offered meet a Bluetooth connectivity standard, without imposing a 15% minimum? If a manufacturer releases one new handset model a year, how many years after the transition date will it take for the 85/15% split to be reached?

87. Instead of its proposed 85/15% split between telecoil and Bluetooth connectivity, the Commission seeks comment on a number of alternative approaches to establishing a telecoil and Bluetooth coupling benchmark.

• Under the first alternative, instead of the Commission's proposed 85/15% split, should it continue to require all handset models to meet the 2019 ANSI Standard's telecoil requirements? This approach would require 100% compliance with all three aspects of the 2019 ANSI Standard (acoustic coupling, telecoil coupling, and volume control) and would ensure that consumers who use telecoils in their hearing aids could purchase any new handset model on the market without having their selection of handset models reduced by an 85% benchmark. This approach would not require a certain percentage of handsets to meet a Bluetooth connectivity requirement.

• Under the second alternative, should the Commission require 100% of new handset models to meet all three aspects of the 2019 ANSI Standard and impose an additional requirement that 15% of these handset models must also meet a Bluetooth connectivity requirement?

• Under the third alternative, should the Commission set a deadline for 50% or more of handset models to incorporate Bluetooth connectivity technology, while retaining an 85% telecoil requirement? This alternative reflects the fact that Bluetooth connectivity is popular among consumers with hearing loss and that 56% of handset models already support some form of Bluetooth connectivity. Would this approach create redundancy in coupling requirements or provide consumers with hearing loss much needed flexibility to connect with hearing devices?

• Under the fourth alternative, instead of an 85/15% split, should the Commission impose a different telecoil/Bluetooth split such as a 75/25% or 60/40% split or should the Commission's rules provide for a gradual change in the split over a period of years that results in a more even split between the telecoil and Bluetooth coupling requirements?

• Under the fifth alternative, should the Commission avoid imposing a precise percentage and give manufacturers and service providers more flexibility to follow market demands and determine the percentage of handset models that they offer that meet either telecoil or Bluetooth connectivity requirements? Would such a flexible approach benefit or harm consumers with hearing loss and how would the Commission monitor and evaluate whether the split that develops is appropriate or harmful to consumers with hearing loss?

88. The Commission seeks comment on these alternative approaches. Is there a significant additional cost to incorporating both forms of connectivity in a single handset model (even though most new handsets today offer both technologies)? Would any of these approaches impede the development or improvement of handset model technology, either for consumers in general or for consumers with hearing loss? The Commission seeks comment on this issue in light of the Task Force's statement that consumers prefer Bluetooth coupling over telecoil coupling. Is one of these approaches more in the interest of consumers while allowing more opportunity for handset manufacturers to innovate? What are the costs and benefits of each of these approaches or an approach that gradually evens the split between telecoil and Bluetooth coupling requirements over a period of years and what should the period of years be?

89. The Commission proposes to establish a 24-month transition period for handset manufacturers to meet the 100% benchmark, running from the effective date of an amended rule adopting the 100% requirement, and a 30-month transition period for nationwide service providers. Further, the Commission proposes a 42-month transition period for non-nationwide service providers. The Commission seeks comment on this proposal.

90. While the Commission's proposed transition periods are shorter than the four-year transition period the HAC Task Force recommends for handset manufacturers and the five-year transition period it recommends for service providers, the Commission previously has relied on a two-year transition period when transitioning to new technical standards and the Commission proposes that establishing a two-year transition period again would be appropriate to balance the product development cycles for manufacturers and service providers with the needs of consumers with hearing loss. The longer transition periods the Commission proposes for service providers will allow new handset models certified using the latest certification standards to flow downstream and be available for providers to offer for sale.

91. Given that the Commission adopted the 2019 ANSI Standard in February 2021 and that WTB has conditionally granted ATIS's volume control waiver request, the Commission believes that these transition periods are reasonable. Handset manufacturers have been on notice since February 2021 of the requirements of the new standard and WTB granted ATIS's request to adjust the volume control testing requirements by waiver, based on the conditions set out in the ATIS Ex Parte Letter. Is there any reason why handset manufacturers cannot meet a two-year transition requirement assuming that the volume control testing requirements are those recently approved by WTB and the Commission does not adopt a new volume control standard before the end of the manufacturer transition period? Since the current volume control testing requirements are based on ATIS's request, is there a reason why manufacturers cannot meet ATIS's requested testing methodology by the end of a two-year transition period?

92. In order to meet the 2019 ANSI Standard's requirements and related volume control requirements, is it simply a matter of testing existing hearing aid-compatible handset models under the new standards or is there reason to believe that handset models need to be redesigned to meet the new standards? If handset models have to be redesigned to meet the new standards, would this process already be underway? The Commission notes that the Task Force indicates that part of the reason it is supporting the 85/15% split is because the 2019 ANSI Standard's telecoil testing requirements are “more difficult” to meet than the 2011 ANSI Standard's telecoil requirements. Given that the Task Force is accounting for the new telecoil testing standards in its proposed 85/15% split, why does this not support a two-year transition period for manufacturers? Commenters arguing that the new telecoil testing standard requires a longer transition period should explain why adjusting the split downward is not a better solution then drawing out the transition period.

93. The Commission seeks comment on whether manufacturers and service providers can achieve compliance with a 100% requirement within the proposed timeframes, and if not, about potential alternative timeframes. The Commission seeks comment on the steps manufacturers and service providers must take to meet a 100% compliance standard and the scope and timeline of any necessary changes. What, if any, obstacles do manufacturers or service providers anticipate facing? Given the significant public interest in moving quickly to achieve 100% compliance as well as the current extensive availability of hearing aid-compatible handset models, any commenters proposing longer transition periods should provide specific information about why more time is needed.

94. The Commission seeks comment on how the two alternatives outlined above for reaching 100% compatibility ( i.e., the grandfathering proposal or the 100% 2019 ANSI Standard approach) would impact transition times. Would the 100% 2019 ANSI Standard approach require a longer transition period to 100% hearing aid compatibility than its grandfathering proposal? What impact would that longer period have on consumers with hearing loss? If the Commission requires 100% of handset models to meet only certain aspects of the 2019 ANSI Standard (or future ANSI standards adopted by the Commission), is a 24-month transition period for manufacturers and a 30-month or 42-month transition period for service providers feasible? Alternatively, if the Commission adopts the 100% 2019 ANSI Standard approach, should it impose the transition period proposed by the Task Force—four years for manufacturers and five years for service providers? Instead of a single timeline, should the Commission develop separate timelines for reaching different aspects of hearing aid compatibility, such as 100% compliance on acoustic coupling, as compared to reaching 100% compliance for “magnetic/wireless coupling” ( i.e., the 85/15% proposal for telecoil coupling and Bluetooth connectivity), and another timeline for reaching 100% for volume control?

95. The Commission's wireless hearing aid compatibility rules do not address whether a handset model by default must come out-of-the-box with its hearing aid compatibility functions fully turned on, or whether it is permissible for a manufacturer to require a consumer to turn these functions on by going into the handset's settings. Further, the Commission's rules do not address whether a handset model can have two different settings: one setting that turns on acoustic coupling and volume control, but not telecoil coupling, and a second separate setting that turns on the handset model's telecoil coupling capabilities. In addition, the Commission's rules do not address whether a handset model in telecoil mode has to continue to fully meet acoustic and volume control requirements.

96. While the Commission's hearing aid compatibility rules do not address this issue, staff has informally advised handset manufacturers that handset models cannot have separate selections for volume control compliance and another for RF interference and telecoil compliance. Staff has stated that only one hearing aid compatibility selection is permitted and multiple selections are not permitted. Recently, staff has been asked whether this informal advice could be modified to allow two hearing aid compatibility modes of operation in a handset model and whether a handset model in telecoil mode must continue to fully meet acoustic coupling and volume control requirements.

97. The HAC Task Force's Final Report does not address this hearing aid compatibility handset model setting issue. The Task Force does recommend, however, that the Commission require acoustic coupling in all handset models and adopt a Bluetooth connectivity requirement as an alternative coupling method to telecoil coupling in a certain percentage of handset models. If the Commission adopts this Bluetooth proposal, then a handset model certified as hearing aid compatible under the 2019 ANSI Standard would have to meet at least three hearing aid compatibility requirements. The handset model would have to meet acoustic coupling and volume control requirements and—depending on the handset model—would also have to meet either a telecoil coupling or Bluetooth connectivity requirement. It is also conceivable that a handset model might meet acoustic, telecoil, and Bluetooth coupling requirements as well as the volume control requirements that WTB recently addressed.

98. Given these potential alternative coupling methods and informal manufacturer requests that the Commission allow more than one mode of operation for hearing aid compatibility in a handset model and detail what each mode of operation must include, the Commission believes stakeholders would benefit from the establishment of a rule, and it seeks comment on this issue. The Commission proposes that after the expiration of the manufacturer transition period, all handset models must by default come out-of-the-box with acoustic coupling and volume control certification requirements fully turned on. The Commission further proposes to permit handset models to have a specific setting that turns on the handset model's telecoil or Bluetooth coupling function, depending on the secondary capability included in a particular handset model. The Commission seeks comment on these proposals as well as whether a handset model operating in telecoil or Bluetooth coupling mode must also continue to meet acoustic coupling and volume control requirements or some aspects of these requirements.

99. In this regard, the Commission seeks comment on whether it is necessary for a handset model in telecoil or Bluetooth coupling mode to continue to fully meet acoustic and volume control requirements. Should the Commission allow handset models operating in telecoil or Bluetooth coupling mode to automatically turn off acoustic coupling or the volume control function, or should it require these functions to remain on or some portion of these functions to remain on? Is it technically feasible for a handset model in telecoil or Bluetooth coupling mode to meet the 2019 ANSI Standard's acoustic and volume control requirements in full or even necessary from a consumer's perspective for a handset model in telecoil mode or Bluetooth coupling mode to meet these requirements? Should a handset model that meets all four hearing aid compatibility requirements be required to meet all aspects of acoustic and volume control requirements or only some part of those requirements when it is operating in telecoil or Bluetooth coupling mode? If it is technically feasible for a handset model to operate with telecoil and/or Bluetooth coupling at the same time as meeting the acoustic coupling and volume control requirements, should the Commission require all available coupling options to be turned on in the handset model's default mode?

100. If the Commission determines to allow more than one hearing aid compatibility mode of operation, it is concerned with how difficult it might be for consumers to discover these features and to understand their functionality. In this regard, should the Commission establish standard hearing aid compatibility settings that would be consistent across all hearing aid-compatible handset models? Would it be helpful if the Commission were to establish uniform, industry-wide nomenclature for compatibility modes in handset models? If the Commission allows a handset model to have two compatibility modes, what should it call these modes? Should the default mode be called HAC mode and the second mode be called Telecoil or Bluetooth mode, depending on the handset model? What if a handset model meets all four hearing aid compatibility requirements? Under these circumstances, should it allow three different modes of compatibility and, if so, what should the Commission require each of these modes to be called, and what hearing aid compatibility functions should it require to be included in each mode?

101. Commenters should fully explain why they support or oppose the Commission's proposals for different modes of operations and why the Commission's proposals are in the public interest or not in the public interest. What are the costs and benefits of each of the Commission's proposals? What are the advantages and the disadvantages of the Commission's proposals in terms of their impact on handset manufacturers and consumers?

102. The Commission seeks comment on whether to revise the labeling and disclosure requirements in § 20.19(f). As stated above, the Commission proposes that, after the expiration of the applicable transition period for handset manufacturers, all handset models must be certified as hearing aid compatible. Further, the Commission proposes that at least 85% of these handset models must meet a telecoil coupling requirement and that at least 15% of these handset models must meet the Commission's new Bluetooth coupling requirement. The Commission proposes using either its grandfathering proposal or a 100% 2019 ANSI Standard alternative. Under either approach, the Commission proposes that all new handset models must be certified using the 2019 ANSI Standard's acoustic coupling requirements and the related volume control requirements, and that all new handset models must meet either the standard's telecoil coupling requirement or a Bluetooth requirement. If the Commission adopts these proposed changes, it tentatively conclude that it should revise the package labeling provisions in § 20.19(f)(1) of the Commission's rules to reflect these changes. Specifically, it tentatively concludes that the handset model's package label must state whether the handset model includes telecoil coupling capability that meets certification requirements; includes Bluetooth connectivity as a replacement for meeting telecoil certification requirements; or includes both. The Commission seeks comment on whether revising the package labeling rule in this way would be sufficient to ensure that consumers can easily determine from looking at a handset model's package label whether the handset model has the coupling ability that meets their needs.

103. The Commission also tentatively concludes that it should make a corresponding change to the package insert and handset user manual requirements in § 20.19(f)(2) to require information in a package insert or user manual about whether a handset model meets telecoil certification requirements; replaces this requirement with Bluetooth coupling ability; or includes both. Section 20.19(f)(2) establishes labeling and disclosure requirements for manufacturers and service providers and requires them to include certain information about the hearing aid compatibility of each handset model in a package insert or user manual for the handset. For new handset models that use Bluetooth coupling rather than telecoil coupling to meet Commission requirements, the Commission proposes to require that the package insert or handset model user manual explain that the handset model does not meet telecoil certification requirements and instead couples with hearing aids using a Bluetooth standard and provide the name of that Bluetooth standard. The Commission seeks comment on whether revising the rule in this way would provide sufficient information for consumers.

104. Further, if the Commission allows handset models to have default and secondary hearing aid compatibility modes of operation, it tentatively concludes that it should modify its handset package insert and user manual requirements to require an explanation of each of these modes, what each mode does and does not include, and how to turn these settings on and off. The Commission seeks comment on this proposal. How can the Commission ensure that consumers can easily understand these modes of operation and what each mode of operation includes and does not include? Besides the name of the mode, how does the Commission ensure that consumers can easily find these modes in a handset model's setting and that the modes are not buried in subheadings? Commenters supporting this modification should provide examples of what the package insert or user manual rule should state. Commenters supporting or opposing this change should explain why this change is or is not in the public interest and why this change is consistent or inconsistent with section 710(d) of the Act.

105. As an additional proposed change to § 20.19(f)(2), the Commission proposes to permit manufacturers and service providers to provide the information required under this section to consumers through the use of digital labeling technology ( e.g., quick response (QR) codes) on handset boxes rather than through a package insert or user manual. A QR code is a type of barcode that can be read easily by a digital device, such as a handset with a camera, and is typically used for storing Uniform Resource Locator (URL) information. Companies often use QR codes to link consumers to a company's web page in order to provide consumers with additional information on a company product.

106. When the Commission adopted the requirement for package inserts, it considered requests from industry to give manufacturers and service providers more flexibility in the methods used to convey information on a handset model's hearing aid compatibility and volume control capabilities, including providing this information online rather than in the packaging insert or user manual. The Commission found, however, that consumers may not necessarily visit service provider websites before going to a service provider's store and purchasing a hearing aid-compatible handset. Therefore, the Commission required that package inserts and user manuals be provided with hearing aid-compatible handset models and that this information not just be provided online.

107. The Commission proposes to reconsider its determination and allow manufacturers and service providers to meet the requirements of § 20.19(f)(2) through the use of digital labeling technology such as QR codes on handset boxes, or other accessible formats. When the Commission required manufacturers and service providers to include this information in package inserts or user manuals and declined to permit this information to be provided online, it based its decision on its finding that consumers may not necessarily visit service provider websites before going to a service provider's store and purchasing a hearing aid-compatible handset. By contrast, permitting service providers and manufacturers to include QR codes on handset packaging would not require consumers to visit a website before purchasing a handset and instead would provide consumers with access to relevant information at the point of sale while consumers are in stores making purchasing decisions. Further, permitting manufacturers and service providers to use QR codes on a handset model's package as an alternative to including a paper insert or user manual with the required hearing aid compatibility information could help ensure that consumers receive more up to date information, while saving paper and helping to streamline packaging.

108. The Commission seeks comment on this proposal and whether permitting the use of QR codes would be an effective alternative approach for ensuring that consumers with hearing loss receive relevant hearing aid compatibility information when purchasing their mobile devices. Would allowing the use of QR codes provide a more consumer friendly approach then continuing to require the use of paper inserts and user manuals? How familiar are consumers with QR codes? Are there enough consumers that are not familiar with QR codes that the Commission should continue to require the use of paper inserts and user manuals in addition to allowing the use of QR codes? Do consumers have the ability to scan a QR code before purchasing a handset, or would they have to rely on store employees to scan the code for them so that they could read the information?

109. Do paper inserts and user manuals have benefits that QR codes cannot provide? If so, what are these benefits? Along these same lines, are there other types of digital labeling technology that the Commission should consider permitting as either an alternative to or in conjunction with the use of QR codes? What are these other digital labeling technologies? Further, if the Commission allows the use of digital labeling technology as an alternative to paper inserts and user manuals, how can it ensure that these methods of labeling do not become obsolete before it can update the labeling rules? Finally, what are the costs and benefits of permitting the use of QR codes or other types of digital labeling as an alternative to continuing to require the use of paper inserts and user manuals?

110. The Commission seeks comment on whether to update its rule on handset model number designations. Section 20.19(g) of the Commission's rules requires that “where a manufacturer has made physical changes to a handset that result in a change in the hearing aid compatibility rating under the 2011 ANSI standard or an earlier version of the standard, the altered handset must be given a model designation distinct from that of the handset prior to its alteration.” The Commission seeks comment on how this rule should apply in cases where a handset model that has passed the 2011 ANSI Standard and has an assigned model number subsequently passes the 2019 ANSI Standard. Under the current rule, if there have been no physical changes to the handset model ( i.e., no changes in hardware or software) a new model number would not be required, but the handset manufacturer may issue the handset model a new model number if it chooses to.

111. In these cases, where a handset model that is already certified as hearing aid compatible is re-certified under an updated ANSI standard, the Commission seeks comment on whether to revise the rule to require a manufacturer to issue a new model number even if there is no physical change to the handset model. Would revising the rule to require manufacturers to issue a new model number for such handset models benefit consumers with hearing loss by making it easier for them to identify the handset models that have been certified under updated standards? How would consumers be able to discern which models have been certified under updated standards otherwise? Would the costs or other burdens associated with such an approach be significant enough to outweigh the potential benefits for consumers?

112. After the end of the applicable transition periods, the Commission tentatively concludes that it should require handset manufacturers and service providers to identify on their publicly accessible websites which handset models in their handset portfolios meet telecoil certification requirements. For those handset models that do not meet telecoil certification requirements, the Commission tentatively concludes that handset manufacturers and service providers must affirmatively state that the handset model does not meet telecoil certification requirements and identify which Bluetooth connectivity standards the handset model meets instead. The Commission also tentatively concludes that handset manufacturers and service providers must identify on their publicly accessible websites the conversational gain with and without hearing aids for each handset model that they offer regardless of whether the handset model meets telecoil certification standards or includes Bluetooth connectivity instead. The posting of a handset model's conversational gain with and without hearing aids is consistent with the Commission's current handset model package label rule. The Commission believes that all of this information is essential for consumers to have access to in order to purchase handset models that meet their individual needs.

113. The Commission seeks comment on these tentative conclusions. Commenters opposing these tentative conclusions should clearly explain why these tentative conclusions are not in the public interest. What are the costs and benefits of these tentative conclusions? The Commission notes that if it allows the use of QR codes or other digital labeling technology as an alternative to paper inserts or user manuals, this may be the only way a consumer might be able to access some of this information. Further, consumers might research this information online before going to a store or may actually buy the handset online without going to the store. Commenters should provide a detailed explanation as to why they support or oppose these tentative conclusions.

114. Further, if the Commission adopts a 100% hearing aid compatibility requirement, it seeks comment on whether to streamline other components of the website and record retention requirements in the Commission's rules. In 2018, the Commission imposed new website posting requirements for service providers and required providers to retain information necessary to demonstrate compliance with the Commission's wireless hearing aid compatibility rules. Under these requirements, each manufacturer and service provider that operates a publicly-accessible website must make available on its website a list of all hearing aid-compatible handset models currently offered, the ANSI standard used to evaluate hearing aid compatibility, the ratings of those handset models under the relevant ANSI standard, if applicable, and an explanation of the rating system. In addition, service providers must post on their websites: a list of all non-hearing aid-compatible handset models currently offered, as well as a link to the current FCC web page containing information about the wireless hearing aid compatibility rules and service providers' obligations. Each service provider must also include the marketing model name/number(s) and FCC ID number of each hearing aid-compatible and non-hearing aid-compatible handset model currently offered.

115. Service providers must also retain on their website a link to a third-party website as designated by the Commission or WTB, with information regarding hearing aid-compatible and non-hearing aid-compatible handset models or, alternatively, a clearly marked list of hearing aid-compatible handset models that have been offered in the past 24 months but are no longer offered by that provider. The rules also require that the information on a manufacturer's or service provider's website must be updated within 30 days of any relevant changes, and any website pages containing information so updated must indicate the day on which the update occurred.

116. Further, the rules require service providers to retain internal records for discontinued handset models, to be made available upon Commission request of: (1) handset model information, including the month year/each hearing aid-compatible and non-hearing aid-compatible handset model was first offered; and (2) the month/year each hearing aid-compatible handset model and non-hearing aid-compatible handset model was last offered for all discontinued handset models until a period of 24 months has passed from that date.

117. The Commission seeks comment on whether to streamline these requirements by eliminating the requirement to post or retain information about non hearing aid-compatible handset models. If the Commission requires that 100% of handset models be hearing aid compatible, it does not anticipate that there would continue to be a need for providers to post information about non hearing aid-compatible handset models on their websites. Do commenters disagree? Should the Commission continue to require service providers to post information and keep records about the non-hearing aid-compatible handset models they offered previously? Would doing so provide useful information for consumers? If the Commission adopts the 100% compliance standard, would the website and record retention rules continue to be necessary to help ensure compliance with the hearing aid compatibility requirements?

118. In this section, the Commission tentatively concludes that after the handset manufacturer 100% transition period ends, it will revise the handset manufacturer annual reporting requirement by eliminating the requirement that a manufacturer use FCC Form 655 for reporting purposes and instead replace this requirement with the requirement that it use FCC Form 855 for reporting purposes. FCC Form 855 is the same form that service providers presently file to show compliance with the Commission's wireless hearing aid compatibility provisions. The Commission also tentatively concludes that after the expiration of the manufacturer transition period, it will change the reporting deadline for handset manufacturers from July 31 each year to January 31 each year. Along with requiring handset manufacturers to file the same form as service providers, this change would align the filing deadline for handset manufacturers with the current filing deadline for service providers. The Commission seeks comment on these tentative conclusions below.

119. Background. Under § 20.19(i), handset manufacturers are presently required to submit FCC Form 655 reports on their compliance with the Commission's hearing aid compatibility requirements each year. FCC Form 655 requires manufacturers to provide information on: (i) handset models tested since the most recent report, for compliance with the applicable hearing aid compatibility technical ratings; (ii) compliant handset models offered to service providers since the most recent report, identifying each model by marketing model name/number(s) and FCC ID number; (iii) for each compliant model, the air interface(s) and frequency band(s) over which it operates, the hearing aid compatibility ratings for each frequency band and air interface under the ANSI standard (if applicable), the ANSI standard version used, and the months in which the model was available to service providers since the most recent report; (iv) non-compliant models offered to service providers since the most recent report, identifying each model by marketing model name/number(s) and FCC ID number; (v) for each non-compliant model, the air interface(s) over which it operates and the months in which the model was available to service providers since the most recent report; (vi) total numbers of compliant and non-compliant models offered to service providers for each air interface as of the time of the report; (vii) any instance, as of the date of the report or since the most recent report, in which multiple compliant or non-compliant devices were marketed under separate model name/numbers but constitute a single model for purposes of the hearing aid compatibility rules, identifying each device by marketing model name/number and FCC ID number; (viii) status of product labeling; (ix) outreach efforts, and (x) if the manufacturer maintains a public website, the website address of the page(s) containing the required information regarding handset models.

120. Section 20.19(i) also requires that service providers submit FCC Form 855 each year certifying under penalty of perjury their compliance with the Commission's hearing aid compatibility requirements. Certifications filed by service providers must include: (i) the name of the signing executive and contact information; (ii) the company(ies) covered by the certification; (iii) the FCC Registration Number (FRN); (iv) if the service provider maintains a public website, the website address of the page(s) containing the required information regarding handset models; (v) the percentage of handset models offered that are hearing aid compatible; and (vi) a statement certifying that the service provider was in or was not in full compliance with the hearing aid compatibility provisions for the reporting period.

121. Prior to the 2018 HAC Order, the Commission required service providers to show compliance with the Commission's wireless hearing aid compatibility provisions by filing FCC Form 655 just as handset manufacturers are presently required to do. In the 2018 HAC Order, however, the Commission took steps to reduce regulatory burden on service providers by eliminating annual service reporting requirements and allowing service providers to instead file a streamlined annual certification stating their compliance with the Commission's hearing aid compatibility requirements. The Commission found that many of the benefits of annual status reporting by service providers had become increasingly outweighed by the burdens that such information collection placed on those entities. The Commission noted that the action it was taking would streamline “the Commission's collection of information while continuing to fulfill the underlying purposes of the current reporting regime.”

122. While the 2018 HAC Order did not change the reporting requirements for handset manufacturers, the Commission noted that in the 100% hearing aid compatibility docket it was considering broader changes to the hearing aid compatibility rules that may be appropriate in the event it required 100% of covered handset models to be hearing aid compatible. The Commission indicated that the website, record retention, and certification requirements it was adopting as part of the 2018 HAC Order would remain in place unless and until the Commission took further action in the 100% hearing aid compatibility docket and that its decisions did not “prejudge any further steps we may take to modify our reporting rules in that proceeding.”

123. Currently, handset manufacturer compliance filings are due by July 31 each year and cover the reporting period from the previous July 1 to June 30. Service providers compliance filings are due by January 31 of each year and cover the previous calendar year—January 1 through December 31.

124. Discussion. The Commission seeks comment on its tentative conclusions to require handset manufacturers to file FCC Form 855 instead of FCC Form 655 and to align the filing deadline for handset manufacturers to the January 31 deadline that currently applies to service providers. Is moving handset manufacturers to FCC Form 855 after the end of the manufacturer transition period consistent with a 100% hearing aid compatibility standard? If the Commission requires all handset models to be hearing aid compatible, would requiring manufacturers to submit information on the more detailed FCC Form 655 still be necessary? After the transition period expires, handset manufacturers will no longer be permitted to offer non-hearing-aid compatible handset models. Is there any reason why the Commission would need to continue to collect information about handset models such as the marketing name or model number, air interface, or months offered?

125. Is it in the public interest to move handset manufacturers to FCC Form 855 once the handset manufacturer transition period ends? The Commission seeks comment on the relative costs and benefits of moving handset manufacturers to FCC Form 855 rather than continuing to require them to file FCC Form 655. Would moving manufacturers to FCC Form 855 be sufficient to emphasize to manufacturers the importance of compliance with the Commission's rules while reducing the burdens of gathering, formatting, and submitting data for FCC Form 655? Similarly, would aligning the manufacturer compliance filing deadline with the current January 31 deadline for service providers provide for efficiencies or create any difficulties for handset manufacturers or service providers?

126. As discussed above, as part of its proposal for a 100% hearing aid compatibility benchmark, the Commission proposes to require that at least 85% of handset models offered meet a telecoil coupling requirement and that at least 15% of handset models offered meet a Bluetooth connectivity requirement. If the Commission adopts these proposed benchmarks, should it retain the FCC Form 655 reporting obligation for handset manufacturers so that it can monitor manufacturers' compliance, or would it be sufficient to require manufacturers to certify that they are in compliance with these requirements and all other requirements by filing under penalty of perjury FCC Form 855 as service providers presently do? Given the Commission's proposal that handset manufacturers would have to indicate on their websites which of their offered handset models meet telecoil certification standards and which do not, would such a requirement eliminate the need to require manufacturers to file FCC Form 655 and allow the Commission to replace this requirement with a requirement that they file FCC Form 855?

127. In addition, if the Commission adopts its grandfathering proposal for the 100% requirement, handset manufacturers would have in their handset portfolios handset models certified under different certification standards, including some handset models certified under the 2011 ANSI Standard and others certified under the 2019 ANSI Standard. Would maintaining the FCC Form 655 reporting requirement be necessary to obtain information about the different hearing aid-compatible handset models that manufacturers offer? In this regard, the Commission notes that handset manufacturers are required to indicate on their websites the ANSI standard under which a handset model is certified. Does this website posting requirement eliminate the need to file FCC Form 655 because of grandfathered handset models? Further, can the Commission gather relevant handset model information from equipment authorization reports instead of from FCC Form 655?

128. Finally, if the Commission maintains the FCC Form 655 filing requirement for handset manufacturers after the end of the manufacturer transition period, are there any changes that the Commission should make to this form in regards to the information that the form collects? Further, are the any changes that the Commission should make to FCC Form 855 in regards to the information that this form collects either in terms of service providers or if it moves handset manufacturers to this form, too?

129. The Commission proposes to decline the HAC Task Force's recommendation that the Commission permit service providers to rely on the information linked to in the Commission's Accessibility Clearinghouse as a legal safe harbor when making a determination of whether a handset model is hearing aid compatible for purposes of meeting applicable benchmarks.

130. The HAC Task Force's Final Report recommends that service providers should be able to rely on the information reported in the Global Accessibility Reporting Initiative (GARI) database, which is linked at the Accessibility Clearinghouse website. The Report asserts that the GARI database would provide a more up-to-date snapshot of hearing aid-compatible handset models than the annual FCC Form 655 report that manufacturers file. Presently, the Commission allows service providers to rely on the information from a handset manufacturer's FCC Form 655 as a safe harbor. In its Public Notice, WTB sought comment on the HAC Task Force's recommendation. MWF commented that its GARI website had “gained global recognition” and that the database “is kept up to date with the available devices in the marketplace.” MWF also noted that for the GARI website, “all manufacturer statements” are “subject to the legal requirements for accuracy of representations to consumers.” The HAC Task Force, in its reply, argued that being able to rely on the GARI database “will provide a user-friendly experience for service providers to receive timely information, compared to the Form 655 reports and Equipment Authorization System.”

131. While handset manufacturers must certify to the accuracy of their FCC Form 655 reports, there is no similar requirement with respect to the information handset manufacturers submit to the GARI database. The GARI database is not a Commission-maintained database, and the Commission does not control who can access the database and what information is added to the database. The Commission has no means of ensuring that the information in the GARI database is accurate, timely, or complete. Further, the Commission already allows service providers to rely on the information from a handset manufacturer's FCC Form 655 as a safe harbor, and it is not convinced that it is necessary to allow service providers a second safe harbor that may not contain accurate information.

132. Accordingly, the Commission proposes to decline the Task Force's recommendation that would allow a service provider to rely on the information linked to in the Commission's Accessibility Clearinghouse to determine whether a handset model is hearing aid compatible for the purpose of meeting applicable benchmarks. The Commission seeks comment on its proposed determination. The Commission also seeks comment on whether, once the transition to 100% hearing aid compatibility is completed, its rules should continue to require service providers to either link to the GARI database on their publicly accessible websites or provide a list for the past 24 months of hearing aid-compatible handset models that they no longer offer.

133. The Commission also proposes to decline the Task Force's recommendation that, if a handset model is not in the GARI database, the Commission “automatically and immediately upload” handset manufacturers' FCC Form 655 reports to the Accessibility Clearinghouse after they are submitted to the Commission. The Commission already posts these reports on the Commission's wireless hearing aid compatibility website and links to that website on the Accessibility Clearinghouse website. The Commission seeks comment on its proposed determinations.

134. The Commission tentatively concludes that it should modify its website posting requirements to require handset manufacturers and service providers to include on their publicly accessible websites a point-of-contact for consumers to use in order to resolve questions they have about a company's hearing aid-compatible handset models. Under its tentative conclusion, handset manufacturers and service providers would provide the name of a department or a division that is staffed with knowledgeable employees and provide an email address, mailing address, and a toll free number that consumers could contact in order to find out information about a hearing aid-compatible handset model that the company offers or to ask questions about how a particular handset model links to the consumer's hearing device. The Commission would expect manufacturers and service providers to be responsive to consumer questions and interact with consumers asking questions about hearing aid-compatible handset models in a manner consistent with the Consumer Code for Wireless Service that can be found on CTIA's website.

135. Section 710(a) of the Act requires the Commission to “establish such regulations as are necessary to ensure reasonable access to telephone service by persons with impaired hearing.” The Commission seeks comment on whether requiring handset manufacturers and service providers to post contact information on their publicly accessible websites is necessary in order to ensure that consumers with hearing loss have reasonable access to telephone service. The Commission believes such a requirement might be beneficial to consumers in terms of getting their questions answered and may help handset manufacturers and service providers sell new handsets and services. Further, by requiring the contact information to be provided on publicly accessible websites, the information can be easily updated and is readily accessible to the public; a provider's website is also a place the public reasonably expects to find contact information for these types of inquiries. The Commission's website posting rules require websites to be updated within 30 days of a change.

136. The Commission seeks comment on its tentative conclusion that handset manufacturers and service providers should be required to include contact information on their publicly accessible websites that consumers can use regarding questions that they might have on a company's hearing aid-compatible handset models. How can the Commission ensure that handset manufacturers and service providers display contact information in a uniform fashion and in a uniform location on their websites? Should the Commission require that this information be provided on the first page of their hearing aid compatibility web pages and in a particular location on this page, such as the upper right-hand corner? Should the Commission require that this information be labeled as HAC Contact Information or something similar? How can the Commission ensure that consumers can easily find the required contact information, and should the Commission require additional information to be provided beyond what it is proposing?

137. The Commission also seeks comment on whether to require handset manufacturers and service providers both to provide this contact information on their publicly accessible websites, and also to provide this contact information in their FCC Form 655 and 855 filings. Under this alternative, the Commission would modify these forms to provide a space where this contact information would be provided. These forms contain certification requirements to ensure the accuracy of the information that is provided; however, the forms are only due once a year and are not required to be updated within 30 days of a change as the Commission's website posting rule requires. Further, consumers might not be aware of these forms or where to access them but are likely familiar with company websites and understand how to access them. Moreover, consumers would expect to find this type of contact information on a company website.

138. Alternatively, the Commission seeks comment on whether it should require handset manufacturers and service providers to enter the required contact information in a Commission-maintained database. Under this approach, the Commission would create a database that would contain company point-of-contact information for consumers who have hearing aid compatibility questions related to a company's hearing aid-compatible handset models that they offer. Companies would be required to enter their contact information for hearing aid compatibility questions directly into the database and to update their contact information within 30 days of any changes. This database would operate similarly to the Commission's Recordkeeping Compliance Certification and Contact Information Registry. This database could be used to search for a company's representatives who are knowledgeable about the company's hearing aid-compatible handset models that they offer and could answer consumer questions related to these models.

139. Commenters supporting or opposing the above approaches should explain why these proposals are consistent or inconsistent with statutory requirements. In addition, commenters should explain why these proposals are or are not in the public interest and what the costs and benefits of each of these proposals are. Is the Commission's website posting approach more beneficial to consumers in terms of getting questions answered and to companies in terms of selling new handsets and services then the other approaches outlined above? Are consumers familiar with FCC Form 655 and 855 filings, and do they know where to find these filings and how to access them? From a consumer's perspective is it necessary for consumers to be able to find this contact information on the certification forms or is being able to locate it on a company's website sufficient? Is the website posting approach more consumer friendly than adding the contact information to FCC Forms 655 and 855 or the database approach? If the Commission adopts a database approach, how would consumers know about the database or where to find it? Are consumers more likely to go to a company's website before exploring other options? Further, is there an existing Commission database that is accessible to consumers that the Commission could utilize for purposes of requiring handset manufacturers and service providers to list customer service contact information?

140. Finally, the Commission proposes to delete the last sentence of § 20.19(j) which provides that for state enforcement purposes the procedures set forth in part 68, subpart E of the Commission's rules should be followed. The rules in part 68, subpart E relate to sections 255, 716, and 718 of the Communications Act rather than section 610 and the Commission, therefore, proposes to delete this sentence.

141. In view of its tentative conclusion to require 100% of handset models to be hearing aid compatible after the expiration of the relevant transition periods, the Commission tentatively concludes that it should remove the de minimis exception in § 20.19(e) of the Commission's rules. Under this tentative conclusion, once the applicable transition periods expire handset manufacturers and service providers will no longer be able to claim de minimis status.

142. Section 20.19(e) provides a de minimis exception to hearing aid compatibility obligations for those manufacturers and mobile service providers that only offer a small number of handset models. Specifically, section 20.19(e)(1) provides that manufacturers and service providers offering two handset models or fewer in the United States over an air interface are exempt from the requirements of § 20.19, other than the reporting requirement. Section 20.19(e)(2) provides that manufacturers or service providers that offer three handset models over an air interface must offer at least one compliant model. Section 20.19(e)(3) provides that manufacturers or service providers that offer four or five handset models in an air interface must offer at least two handset models that are hearing aid compatible in that air interface.

143. The Commission first adopted the de minimis rule together with the initial wireless hearing aid compatibility requirements in 2003, based on its recognition that the hearing aid compatibility requirements could have a disproportionate impact on small manufacturers or those that sell only a small number of digital wireless handset models in the United States, as well as on service providers that offer only a small number of digital wireless handset models. In the 2005 HAC Order, the Commission clarified that the de minimis rule applies on a per air interface basis, rather than across a manufacturer's or service provider's entire product line. In 2010, the Commission modified the de minimis exception as applied to companies that are not small entities by deciding that, beginning two years after it offers its first handset model over an air interface, a manufacturer or service provider that is not a small entity, must offer at least one model that is hearing aid compatible.

144. The Commission seeks comment on its tentative conclusion to remove the de minimis exception to its hearing aid compatibility rules. Maintaining a de minimis exception that would permit a manufacturer to certify less than 100% of its handset models as hearing aid compatible or would allow a service provider to maintain a handset portfolio that is less than 100% composed of hearing aid-compatible handset models would be inconsistent with the Commission's objective of developing a 100% compliance standard. While the de minimis exception served an important purpose when it was implemented two decades ago, today manufacturers and service providers are able to offer more easily a range of hearing aid-compatible handset models using a variety of technologies including Bluetooth. Considering the developments in hearing aid compatibility technologies, and the greater availability of hearing aid-compatible handset models, the Commission seeks comment on whether maintaining the de minimis exception is necessary. Are there reasons why smaller manufacturers cannot certify all of their handset models as hearing aid compatible or why smaller manufacturers or wireless providers cannot ensure that all of the handset models that they offer are hearing aid compatible? Do commenters believe that maintaining a de minimis exception would still be necessary to preserve competitive opportunities for small entities?

145. The HAC Task Force's Final Report recommends that the Commission set a 90-day shot clock for the resolution of petitions for waiver of the hearing aid-compatibility requirements, which would include a public notice comment cycle. In the Public Notice on the Task Force's recommendations, WTB sought comment on this proposal. In its reply comments, the Task Force reiterated its recommendation. No other commenters addressed this issue.

146. The Commission proposes to decline the Task Force's recommendation because it does not anticipate that establishing a shot clock would be necessary to ensure the timely resolution of potential future requests for waiver of the hearing aid compatibility rules or to ensure that the deployment of new technologies is not delayed. In addition, given the highly technical nature of the questions that arise in the hearing aid-compatibility proceedings, establishing a 90-day shot clock could limit public participation and negatively impact staff's ability to work with affected stakeholders to develop consensus solutions that serve the interest of consumers with hearing loss. The Commission notes that not only is the 90-day proposal half of what it sought comment on, but that the Commission also sought comment on whether there are situations in which it should have the ability to extend the waiver deadline. The Commission also notes that section 710(f) requires the Commission to periodically review the regulations established pursuant to the Hearing Aid Compatibility Act. This statutory obligation should curtail the need for waivers. The Commission seeks comment on its proposed determination.

147. Finally, the Commission seeks comment on whether it should revise the heading of § 20.19 of its rules to better reflect the scope of its requirements. Section 20.19 is currently titled “Hearing aid-compatible mobile handsets.” The rules, however, are intended to help ensure access to communications services for consumers who use hearing aids as well as other types of hearing devices such as cochlear implants and telecoils as well as consumers who have hearing loss but do not use hearing devices. The Commission seeks comment on whether it should revise the heading of § 20.19 to better reflect the scope of the requirements. If so, the Commission seeks comment on what heading the it should adopt. For example, should the Commission rename § 20.19 to “Accessibility for Consumers with Hearing Loss” or “Hearing Loss Interoperability Requirements?” Are there alternative headings the Commission should consider? Would revising the section heading create consumer confusion or provide needed clarity?

148. To the extent not already addressed, the Commission, as part of its continuing effort to advance digital equity for all, including people of color, persons with disabilities, persons who live in rural or Tribal areas, and others who are or have been historically underserved, marginalized, or adversely affected by persistent poverty or inequality, invites comment on any equity-related considerations and benefits (if any) that may be associated with the proposals and issues discussed herein. Specifically, the Commission seeks comment on how its inquiries may promote or inhibit advances in diversity, equity, inclusion, and accessibility, as well the scope of the Commission's relevant legal authority.

149. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated in the DATES section above. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). All filings related to this document shall refer to WT Docket No. 23-388.

150. As required by the Regulatory Flexibility Act of 1980, as amended, (RFA), the Federal Communications Commission (Commission) has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the Notice of Proposed Rulemaking ( NPRM ). 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 provided in the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register .

151. The Commission's hearing aid compatibility rules ensure that the millions of Americans with hearing loss will have access to the same types of technologically advanced telephone handsets as those without hearing loss. Both manufacturers and service providers, some of which are small entities, are required to make available handsets that meet specified technical criteria for hearing aid compatibility. The Commission issued the NPRM to develop a record relating to a proposal submitted by the Hearing Aid Compatibility (HAC) Task Force on how the Commission can achieve its goal of requiring 100% of handsets offered by handset manufacturers and service providers to be certified as hearing aid compatible.

152. The NPRM tentatively concludes that requiring 100% of all handsets to be certified as hearing aid compatible is an achievable objective under the factors set forth in section 710(e) of the Communications Act. As part of this determination, the NPRM seeks comment on adopting the more flexible “forward-looking” definition of hearing aid compatibility that the HAC Task Force recommends. This determination also includes a proposal to broaden the current definition of hearing aid compatibility to include Bluetooth connectivity technology and to require at least 15% of offered handset models to connect to hearing aids through Bluetooth technology as an alternative to or in addition to a telecoil. The NPRM seeks comment on the Bluetooth technology the Commission should utilize to meet this requirement and how to incorporate this requirement into the wireless hearing aid compatibility rules. Additionally, the NPRM proposes a 24-month transition period for handset manufacturers; a 30-month transition period for nationwide service providers; and a 42-month transition period for non-nationwide service providers to transition to a 100% hearing aid-compatible handset standard for all handset models offered for sale in the United States or imported for use in the United States. The NPRM also seeks comment on certain implementation proposals and updates to the wireless hearing aid compatibility rules related to these proposals.

153. The proposed action is authorized pursuant to sections 1-4 and 641-646 of the Communications Act of 1934, as amended, 47 U.S.C. 151-154 and 641-646.

154. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

155. Small Businesses, Small Organizations, Small Governmental Jurisdictions. The Commission's actions, over time, may affect small entities that are not easily categorized at present. The Commission therefore describe, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the Small Business Administration's (SBA) Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States, which translates to 33.2 million businesses.

156. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2020, there were approximately 447,689 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.

157. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicate there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number, there were 36,931 general purpose governments (county, municipal, and town or township) with populations of less than 50,000 and 12,040 special purpose governments—independent school districts with enrollment populations of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, the Commission estimates that at least 48,971 entities fall into the category of “small governmental jurisdictions.”

158. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. 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 small business size standard for this industry classifies businesses having 1,250 employees or less as small. U.S. Census Bureau data for 2017 show that there were 656 firms in this industry that operated for the entire year. Of this number, 624 firms had fewer than 250 employees. Thus, under the SBA size standard, the majority of firms in this industry can be considered small.

159. Part 15 Handset Manufacturers. Neither the Commission nor the SBA have developed a small business size standard specifically applicable to unlicensed communications handset manufacturers. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing is the closest industry with a SBA small business size standard. The Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing industry is comprised of 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 small business size standard for this industry classifies firms having 1,250 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 656 firms in this industry that operated for the entire year. Of this number, 624 firms had fewer than 250 employees. Thus, under the SBA size standard the majority of firms in this industry can be considered small.

160. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. The SBA size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms in this industry that operated for the entire year. Of that number, 2,837 firms employed fewer than 250 employees. Additionally, based on Commission data in the 2022 Universal Service Monitoring Report, as of December 31, 2021, there were 594 providers that reported they were engaged in the provision of wireless services. Of these providers, the Commission estimates that 511 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

161. Wireless Resellers. Neither the Commission nor the SBA have developed a small business size standard specifically for Wireless Resellers. The closest industry with a SBA small business size standard is Telecommunications Resellers. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications and they do not operate transmission facilities and infrastructure. Mobile virtual network operators (MVNOs) are included in this industry. Under the SBA size standard for this industry, a business is small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that 1,386 firms in this industry provided resale services during that year. Of that number, 1,375 firms operated with fewer than 250 employees. Thus, for this industry under the SBA small business size standard, the majority of providers can be considered small entities.

162. The Commission expects potential rule changes proposed in the NPRM, if adopted, could impose some new reporting, recordkeeping, or other compliance requirements on some small entities. If the proposals in the NPRM are adopted, small and other manufacturers and service providers would be required to certify that 100% of handsets offered are hearing aid compatible. Small and other manufacturers' and service providers' handset portfolios would be allowed to meet this 100% requirement, with grandfathered handsets, or in the alternative, could be required to have 100% of handsets meet aspects of the 2019 ANSI Standard. Additionally, small and other manufacturers' and service providers' could be subject to a compliance requirement that 85% of these handsets must meet the 2019 ANSI standard's telecoil coupling requirements and the remaining 15% of these handsets meet a new Bluetooth connectivity requirement as a replacement for meeting the standard's telecoil requirements.

163. If adopted, the transition period for compliance would allow a 24-month transition period for handset manufacturers; a 30-month transition period for nationwide service providers; and a 42-month transition period for non-nationwide service providers, which are typically small entities, to transition to a 100% hearing aid-compatible handset standard for all handset models offered for sale in the United States or imported for use in the United States.

164. In addition, small and other handset manufacturers could be subject to compliance requirements should certain implementation proposals and updates to the wireless hearing aid compatibility rules be adopted. For example, a revision to the package labeling provisions in section 20.19(f)(1) of the Commission's rules could require handset manufacturers to have the handset package label state whether the handset has a telecoil that meets certification requirements or instead includes Bluetooth connectivity as a replacement for meeting telecoil certification requirements. Also, if a corresponding change to the package insert and handset manual requirements in section 20.19(f)(2) is adopted, manufacturers could be required to provide information in a package insert or user manual about whether a handset meets telecoil certification requirements or replaces this requirement with Bluetooth coupling ability.

165. If the proposed rules are adopted small and other handset manufacturers and service providers would be required to identify on their publicly accessible websites which handsets in their handset portfolios meet telecoil certification requirements. For those handsets that do not meet telecoil certification requirements, handset manufacturers and service providers would be required to identify which Bluetooth connectivity standards these handsets include. Handset manufacturers and service providers would also be required to identify on their publicly accessible websites the conversational gain with and without hearing aids for each handset that they offer regardless of whether the handset meets telecoil certification standards or includes Bluetooth connectivity instead.

166. Additionally, after the expiration of the manufacturer transition period, all handsets would be required by default to have their acoustic and volume control functions on. Handsets would also be allowed to I have a secondary mode whereby the handset's telecoil is turned on or, for those handsets that substitute Bluetooth connectivity for telecoil connectivity, the Bluetooth function is turned on. In addition, proposed modifications of the handset package insert and user manual requirements could require an included explanation of each of these modes, what each mode does and does not include, and how to turn these settings on and off. In view of the proposal to require 100% of handsets to be hearing aid compatible, should it be adopted, the de minimis exception in section 20.19(e) of the rules would be removed.

167. Small entities may be required to hire attorneys, engineers, consultants, or other professionals to comply with the rule changes proposed in the NPRM, if adopted. The Commission does not believe, however, that the costs and/or administrative burdens associated with any of the proposal rule changes will unduly burden small entities. While the Commission cannot quantify the cost of compliance with the potential rule changes and compliance obligations raised in the NPRM, in its discussion of the proposals the Commission has requested comments from the parties in the proceeding including cost and benefit analyses which may help the Commission identify and evaluate relevant matters for small entities, such as compliance costs and burdens that may result from the proposed rules and the matters on which the Commission has requested comments.

168. 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 such small entities; (3) the use of performance, rather than design, standards; and (4) exemption from coverage of the rule, or any part thereof, for such small entities.”

169. In the NPRM, the Commission considers specific steps it could take and alternatives to the proposed rules that could minimize potential economic impact on small entities that might be affected by the proposed rule changes, as well as any other rule changes that may be required as a result of comments provided by interested parties. The Commission proposes a 24-month transition period for handset manufacturers; a 30-month transition period for nationwide service providers; and a 42-month transition period for non-nationwide service providers, which are typically small entities, to transition to a 100% hearing aid-compatible handset standard for all handset models offered for sale in the United States or imported for use in the United States. The proposed transition periods would minimize some economic impact for small manufacturers and service providers since they would not have to immediately comply with the revised standard in the short term. In particular, the 42-month transition period would be particularly beneficial for non-nationwide providers, which are usually small entities. The Commission seeks comment on whether the proposed transition periods are reasonable timeframes to allow implementation of the 100% compliance standard. Alternatively, the Commission considered using the longer transition periods recommended by the HAC Task Force; however, the proposal in the NPRM is both more in keeping with previous transition periods the Commission has utilized for new technical standards and serves the needs of consumers with hearing loss as soon as possible without negatively impacting product development cycles for manufacturers and service providers.

170. To limit any potential burdens regarding the impact of the proposed transition to a 100% compliance standard on previously manufactured wireless handsets, the Commission proposes to allow manufacturers and service providers to continue to offer handsets that are already certified as hearing aid compatible as part of their hearing aid-compatible handset portfolio. Under this proposal, handsets would be grandfathered and manufacturers and service providers can include these handsets in their 100% handset portfolios as long as the handsets are still being offered. This grandfathering proposal could minimize the burdens associated with implementing the new standard for small entities because they would not have to recertify previously approved handsets. In developing the proposal, the Commission considered discontinuing its grandfathering rule, in which case 100% of the handset models in a manufacturer's or service provider's handset portfolio would have to be certified as hearing aid-compatible using the 2019 ANSI Standard's requirements, as modified by a possible telecoil and Bluetooth connectivity split. The NPRM seeks comment from small and other entities on the economic impact of adopting such an approach.

171. To reduce potential reporting burdens, the Commission seeks comment on whether to eliminate website and record retention requirements that may no longer be necessary if it adopts a 100% compliance standard. Specifically, the Commission seeks comment on whether to eliminate the requirement that service providers and manufacturers post or retain information about non hearing aid-compatible handsets. Additionally, the Commission proposes to eliminate the annual service reporting requirements for manufacturers if the Commission adopts a 100% compliance standard. Alternatively, the Commission considered approaches that would retain website and record retention requirements as well as annual service reporting requirements, but believes the proposed approach would better serve the needs of small entities for the reasons stated above.

172. The Commission seeks to balance the potential economic impact and burdens that small entity manufacturers and service providers might face in light of the 100% compliance requirement with the need to ensure that Americans with hearing loss can access a wide array of handsets with emerging technologies. Therefore the NPRM seeks comment on alternative obligations, timing for implementation, and other measures including costs and benefits analyses that will allow the Commission to more fully consider and evaluate the economic impact on small entities. The Commission will review the comments filed in response to the NPRM and carefully consider these matters as it relates to small entities before adopting final rules in this proceeding.

173. None.

174. Accordingly, it is ordered that, pursuant to sections 1-4 and 641-646 of the Communications Act of 1934, as amended, 47 U.S.C. 151-154 and 641-646, this Notice of Proposed Rulemaking is adopted .

175. It is further ordered that WT Docket No. 15-285 is hereby terminated .

176. It is further ordered that the Commission's Office of the Secretary, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 20 as follows:

The revisions and additions read as follows:

This is a summary of the Commission's Second Further Notice of Proposed Rulemaking ( Second FNPRM ), in CG Docket Nos. 02-278 and 21-402; FCC 23-107, adopted on December 13, 2023, and released on December 18, 2023. The full text of this document is available online at https://docs.fcc.gov/public/attachments/FCC-23-107A1.pdf .

This matter shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. 47 CFR 1.1200 through 1.1216. 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. See 47 CFR 1.1206(b). Other rules pertaining to oral and written ex parte presentations in permit-but-disclose proceedings are set forth in § 1.1206(b) of the Commission's rules, 47 CFR 1.1206(b).

The Second FNPRM may contain proposed new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and OMB to comment on any information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how to further reduce the information collection burden for small business concerns with fewer than 25 employees.

The Providing Accountability Through Transparency Act, Public Law 118-9, requires each agency, in providing notice of a rulemaking, to post online a brief plain-language summary of the proposed rule. The required summary of the Second NPRM is available at https://www.fcc.gov/proposed-rulemakings .

1. Text Blocking. The Commission proposes and seeks comment on additional text blocking options to better protect consumers from illegal texts. Specifically, the Commission proposes and seeks comment on extending the text blocking requirement to include originating providers, and to require all immediate downstream providers to block the texts from providers that fail to block after Commission notification. The Commission also seeks additional comment on whether to require this blocking to be based on number, source, the substantially similar traffic standard, or some other standard. Next the Commission seeks comment on requiring providers to block texts based on content-neutral reasonable analytics. Third, the Commission seeks comment on traceback for text messaging, including whether to adopt a traceback response requirement for text messaging. Fourth, the Commission seeks comment on any other rules to effectively protect consumers from illegal texts. Finally, the Commission seeks comment on any additional protections that may be necessary in case of erroneous blocking.

2. Expanding the Mandatory Text Blocking Requirement to Originating Providers and Adding a Downstream Provider Blocking Requirement. The Commission proposes and seeks comment on extending the requirement to block following Commission notification of illegal texts to other providers generally, and originating providers specifically. The Commission believes that originating providers are similar to gateway or originating voice service providers in that they are the first U.S.-based provider in the text path and that applying an analogous rule to originating providers could help ensure that these providers are properly incentivized to stop illegal texts even before the Commission sends any notice. The Commission seeks comment on this view.

3. The Commission seeks comment on whether and, if so, how to define originating providers here. Is the originating provider the first provider in the text path, and therefore in a similar position to a gateway or originating voice service provider? Are there other providers in the path that are more similar to a gateway provider? Alternatively, should the Commission apply these rules to some other entity in the chain to better protect consumers? The call blocking rules help hold bad-actor voice service providers responsible for the calls they allow onto the network by denying those voice service providers access to the network entirely when they have demonstrated noncompliance. Is there a particular type of entity in the texting ecosystem that is more likely to either intentionally or negligently shield those sending illegal texts?

4. The Commission proposes and seeks comment on requiring originating providers to block all texts from a particular source following Commission notification. Is this an appropriate standard for blocking? How might originating providers determine the source of a particular text or texts in order to comply with this rule? Alternatively, should the Commission require blocking based on the number or numbers, as the Commission does for terminating providers? If so, how effective is such a requirement? If not, should the Commission also change the standard for terminating providers to match the standard for originating providers, or do originating providers have access to more information, making a broader requirement to block based on source appropriate?

5. Should the Commission limit the length of time for which blocking is required? If so, how long should the Commission require providers to block? Alternatively, should the Commission require originating and/or terminating providers to block using the substantially similar standard applied in the call blocking rules? The Commission believes that texting may present concerns unique from calling that justify a different standard, or require additional guidance for compliance. For example, while a voice service provider will not have the content of a particular call prior to that call reaching the recipient, a texting provider likely does have access to this information. Given that, should the Commission require that blocking be content as well as competitively neutral? Are there any other standards the Commission should consider?

6. The Commission seek comment on whether the process for voice service providers should be applied here to texting. The current rules for call blocking lay out a detailed process that must be followed before requiring all immediate downstream providers to block all of an identified voice service provider's traffic. Is this process appropriate for the texting environment, or are there differences between texting and calling that justify modifications? Several commenters expressed concerns about the delays inherent in this process. While the process works well for calling, delays may have different consequences in the texting context. Is a delay particularly significant when dealing with texts compared to calls? Why or why not? If so, are there changes the Commission could make to address this issue while still ensuring that providers are afforded sufficient due process? For example, should the Commission, as is done in the calling context, allow 14 days for the originating provider to investigate and respond following the Notification of Suspected Illegal Texts or should it change that time frame? Should the Commission establish a different docket for text blocking Orders, or use the same docket used for call blocking?

7. Requiring Blocking of Texts Based on Reasonable Analytics. The Commission seeks comment on requiring or incentivizing providers to block texts based on reasonable analytics. The call blocking rules provide a safe harbor for the blocking of unwanted calls based on reasonable analytics on an opt-out basis. In addition, the call blocking rules provide a safe harbor for the blocking of calls without consumers' consent and calls that are highly likely to be illegal based on reasonable analytics. In both cases, the Commission requires that analytics are applied in a non-discriminatory, competitively neutral manner. The Commission also recently sought comment on requiring terminating voice service providers to offer opt-out blocking services for calls that are highly likely to be illegal. The Commission has not yet addressed text blocking based on reasonable analytics.

8. The Commission seeks comment on whether and how to define reasonable analytics for this purpose. The record indicates that many providers already make use of analytics or other techniques to block illegal texts. What analytics do providers use to identify unwanted or illegal texts? If providers are reluctant to share specifics to avoid tipping off bad actors, the Commission seeks comment on broad criteria that providers may use. For example, a call-blocking program might block calls based on a combination of factors, such as: large bursts of calls in a short timeframe, low average call duration, low call completion ratios, invalid numbers placing a large volume of calls.

9. The Commission seeks comment on whether, and to what extent, providers use volumetric triggers to identify bad traffic. Do any of the call-blocking reasonable analytics factors apply to text and, if so, which ones? Are there other content-neutral factors that are more likely to indicate that a text is illegal that do not apply in the calling context? If the Commission adopts such a rule, are there any necessary modifications the Commission should make to accommodate small businesses? As noted above, the content of a text is available to the provider at the time that blocking occurs, which is not generally true for calls. If the Commission requires providers to block based on reasonable analytics, should the Commission require that these analytics be content-neutral? Should the Commission also require that the blocking be non-discriminatory and competitively neutral? Alternatively, are there ways the Commission could encourage this blocking without requiring it? Are there any other issues the Commission should consider?

10. Because texting is currently classified as an information service, the Commission does not believe that providers need safe harbor protections to engage in this type of blocking. The Commission seeks comment on this belief. Do providers risk liability when they block erroneously? If so, what can the Commission do to reduce that risk while still ensuring that wanted, lawful texts reach consumers?

11. Alternative Approaches. The Commission seeks comment on alternative blocking or mitigation rules the Commission could adopt to target unwanted and illegal texts and better protect consumers. Are there approaches the Commission has not considered here that would stop illegal texts and protect consumers? What can the Commission do to encourage or require providers to adopt these approaches? For example, can the Commission take steps to encourage information sharing between providers?

12. Protections Against Erroneous Blocking. If the Commission adopts additional text blocking requirements, should the Commission also adopt additional protections against erroneous text blocking? The rules already require providers to provide a point of contact for blocking issues. Considering that providers can and do block texts, is this sufficient, or are other protections necessary? If so, what protections should the Commission adopt? For example, should the Commission create a white list for “legitimate research organizations and/or research campaigns” or other entities, or would doing so raise legal or policy concerns? Similarly, should the Commission require some form of notification when texts are blocked, similar to the requirement when calls are blocked based on reasonable analytics? If so, how can providers send a notification, technically? Should the Commission require notification only to certain categories of blocking? Or, should the Commission require providers to give advance notice when a number is flagged as suspicious and may be blocked along with several other protections? Alternatively, should the Commission adopt the same protections already in place for erroneous blocking of calls? What are the risks and benefits of each approach?

13. Text Message Authentication. The Commission seeks additional comment on text message authentication and spoofing. The Commission has so far declined to adopt authentication requirements for texting. The record thus far is mixed on the feasibility of such a requirement, with commenters noting that the STIR/SHAKEN caller ID authentication system is designed to work only on internet Protocol (IP) networks. Further, the record indicates that number spoofing is comparatively rare in SMS and MMS. The Commission believes it is important to continue to build a record on these issues and ensure awareness of any new developments or concerns. The Commission therefore seeks further comment on the need for and feasibility of text authentication. In particular, commenters should address whether number spoofing is an issue in text messaging and, if so, the extent of the problem. If number spoofing is uncommon, are there steps the Commission can take to ensure that it remains the exception rather than the rule? Do bad actors use other spoofing techniques, such as identity spoofing? If so, what can the Commission do to address this problem? Commenters should also discuss any new or in-process technical standards for authentication in text messaging, including their current status and any timelines for development. What issues will these new tools address? If the new technical standards are designed to prevent number spoofing, is this evidence of a more significant spoofing issue than commenters acknowledged in response to the Second FNPRM? If so, should the Commission act more quickly in this area, rather than waiting for the standards bodies to finish their work?

14. The Commission seeks comment on whether it should require industry to regularly provide updates with its progress on text authentication. The Commission believes doing so would ensure that the Commission has the most up-to-date information available without having to adopt further notices of proposed rulemaking covering this topic. Is this belief correct? If so, how often should the Commission require industry to provide updates and how should the Commission determine when further updates are no longer required? For example, should the Commission set a six-month cycle for updates over the next two years? Or should the Commission require some other update cycle and endpoint?

15. Traceback. Traceback has been a key part of the Commission's strategy for combating illegal calls. The Commission seeks comment on whether it should require a response to traceback requests for texting. The Commission seeks comment on requiring providers to respond to traceback requests from the Commission, civil or criminal law enforcement within 24 hours, consistent with the existing rule for gateway voice service providers and the recently adopted rule for all voice service providers that took effect on January 8, 2024, see 88 FR 43446-01 (July 10, 2023). Should the Commission also include the industry traceback consortium as an entity authorized to conduct traceback of texts, or is there some other entity that should be included? Is traceback for texting similar enough to traceback for calls for such a requirement to be effective? Are there any changes the Commission should make to the rule to ensure that traceback works for texts? How should the Commission handle aggregators and cloud platforms? Are there industry efforts that are already in operation, such as CTIA—The Wireless Association's Secure Messaging Initiative, that could replace or complement a traceback requirement? Are there other issues the Commission should consider in adopting a traceback requirement?

16. The Commission seeks comment on the specifics of the traceback process for texts, as well as any obstacles to industry-led traceback efforts that may work alongside or in place of rules the Commission may establish. Are tracebacks typically conducted for texting? If so, what does the process look like? Are there types of providers that are routinely reluctant to respond to these requests? Is information from traceback processes shared and then incorporated into blocking decisions? Are there network modifications, standards, or changes to software or hardware that would enable efficient texting traceback? If the Commission adopts a traceback requirement for texting, are there any necessary modifications the Commission should make to accommodate small business? Is there anything else the Commission should know about traceback for texting?

17. E-Mail-to-Text Messages. The Commission proposes to require providers to make email-to-text an opt in service, so that subscribers wishing to receive these types of messages would first have to opt in to the service. Would such a rule reduce the quantity of fraudulent text messages consumers receive? Does the anonymity of email-to-text make it more attractive to fraudulent texters? Commenters should discuss any drawbacks to requiring providers to block such messages if the consumer has not opted in to such service. For example, would this result in blocking important or urgent messages? If so, how could the Commission reduce this risk? Are there alternatives to making this service opt in that would have a similar effect? If so, what are they and how would they compare? Commenters should discuss how the Commission should define “email-to-text service.” Are there analogous services that should be covered, e.g., voicemail-to-text? The Commission seeks comment on the details of any opt-in requirement and if the opt-in should be in writing. Must it be stand-alone and conspicuous? Will providers have the burden of demonstrating opt-in decisions? Are there any other issues the Commission should consider in adopting a rule?

18. Further Efforts to Assist Small Businesses with Compliance. The Commission seeks further comment on how the Commission can refine and expand its efforts to assist businesses, particularly small businesses, in complying with the one-to-one consent requirement. The Commission has determined based on the record that prior express written consent required under the Telephone Consumers Protection Act (TCPA) must be given to one seller at a time. Some commenters raised concerns that this requirement will increase costs or otherwise disadvantage small business lead generators and/or small business lead buyers. The Commission, therefore, is committed to monitoring the impact that the rule has on these businesses and to assist small businesses with complying with the one-to-one consent rule. The Commission seeks comment on whether and how it can further minimize any potential economic impact on small businesses in complying with the one-to-one consent requirement for prior express written consent under the TCPA. Are there ways to further clarify or refine this requirement to further minimize any compliance costs? What impact would such refinements have on consumers? Are there further outreach efforts or other ways the Commission can assist small businesses in complying with the one-to-one consent rule?

19. Benefits and Costs. The Commission estimates that the total harm of unwanted and illegal texts is at least $16.5 billion. Assuming a nuisance harm of five cents per spam text, the Commission estimates total nuisance harm to be $11.3 billion ( i.e., five cents multiplied by 225.7 billion spam texts). Further, the Commission estimates that an additional $5.3 billion of harm occurs annually due to fraud. Previously, the Commission estimated the harm due to fraud from scam texts at $2 billion. The Commission revised this figure upward in proportion with the increase in spam texts, resulting in an estimate of $5.3 billion. The Commission seeks comment on these estimates of harm and on the costs of the proposals to reduce the harm of unwanted and illegal texts. The Commission will analyze any detailed cost data received in comments.

20. Digital Equity and Inclusion. The Commission, as part of its continuing effort to advance digital equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality, invites comment on any equity-related considerations and benefits (if any) that may be associated with the proposals and issues discussed herein. Specifically, the Commission seeks comment on how the proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility.

21. Legal Authority. The Commission seeks comment on its authority to adopt several issues: (i) additional blocking requirements and related approaches to protect consumers from illegal texts; (ii) text message authentication; and (iii) whether to make email-to-text an opt-in service. The Commission has authority to regulate certain text messages under the TCPA, particularly with regard to messages sent using an autodialer and without the consent of the called party. The Commission seeks comment on whether it has legal authority to adopt rules addressing these issues under the TCPA or the TRACED Act. For example, is the Commission's TCPA jurisdiction sufficient to support the blocking proposals, and does the TRACED Act provide the Commission with additional authority to adopt these rules?

22. Similarly, does the TCPA grant the Commission sufficient authority to adopt the rules regarding requiring email-to-text to be an opt-out service? Commenters should also discuss whether the Commission has authority for the proposals under section 251(e) of the Communications Act, which provides the Commission with “exclusive jurisdiction over those portions of the North American Numbering Plan that pertain to the United States,” particularly to adopt any authentication, traceback, or blocking requirements. The Commission found authority to implement STIR/SHAKEN for voice service providers under section 251(e) of the Act in order to prevent the fraudulent exploitation of numbering resources. Does section 251(e) of the Act grant the Commission authority to adopt implementation of authentication for text messages?

23. The Commission seeks comment on the authority under the Truth in Caller ID Act for these proposals. The Commission found that it has authority under this statute to adopt a blocking requirement in the Text Blocking Order, 88 FR 21497 (April 11, 2023), and FNPRM, 88 FR 20800 (April 7, 2023). The Commission also found authority under this provision to mandate STIR/SHAKEN implementation, explaining that it was “necessary to enable voice service providers to help prevent these unlawful acts and to protect voice service subscribers from scammers and bad actors.” The Commission seeks comment on whether that same reasoning applies here. The Commission also seeks comment on whether it has authority for these proposals under Title III of the Act. Are there any other sources of authority the Commission could rely on to adopt any of the rules discussed in the Second FNPRM?

24. As required by the Regulatory Flexibility Act of 1980, as amended (RFA) the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies proposed in the Second 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 in the Second FNPRM. The Commission will send a copy of the entire Second FNPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the Second FNPRM and the IRFA (or summaries thereof) will be published in the Federal Register .

25. Need for, and Objectives of, the Proposed Rules. In the Second FNPRM, the Commission proposes additional action to stop unwanted and illegal text messages that may harass and defraud consumers. Specifically, the Commission proposes extending the call blocking requirements to require all downstream providers to block the texts from upstream providers that fail to block after Commission notification. The Commission also seeks comment on requiring providers to block texts based on content-neutral analytics, and on whether it is appropriate to adopt a 24-hour traceback response requirement for text messaging. The Second FNPRM also requests comment on alternative approaches to protect consumers from unwanted texts, and any additional protections that may be necessary in case of erroneous blocking. In addition, the Commission seeks comment on the viability of text authentication, and whether it should require industry updates on its feasibility. Finally, the Commission proposes requiring providers to make email-to-text an opt-in service.

26. Legal Basis. The proposed action is authorized pursuant to sections 4(i), 4(j), 227, 301, 303, 307, and 316 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 227, 301, 303, 307, and 316.

27. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

28. Small Businesses, Small Organizations, Small Governmental Jurisdictions. The Commission's actions, over time, may affect small entities that are not easily categorized at present. The Commission therefore describes, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States, which translates to 33.2 million businesses.

29. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2020, there were approximately 447,689 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.

30. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicate there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number, there were 36,931 general purpose governments (county, municipal, and town or township) with populations of less than 50,000 and 12,040 special purpose governments—independent school districts with enrollment populations of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, the Commission estimates that at least 48,971 entities fall into the category of “small governmental jurisdictions.”

31. Wireless Carriers and Service Providers. Wireless Telecommunications Carriers (except Satellite) is the closest industry with an SBA small business size standard applicable to these service providers. The SBA small business size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 797 providers that reported they were engaged in the provision of wireless services. Of these providers, the Commission estimates that 715 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

32. All Other Telecommunications. This industry is comprised of establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Providers of internet services ( e.g., dial-up ISPs) or Voice over internet Protocol (VoIP) services, via client-supplied telecommunications connections are also included in this industry. The SBA small business size standard for this industry classifies firms with annual receipts of $35 million or less as small. U.S. Census Bureau data for 2017 show that there were 1,079 firms in this industry that operated for the entire year. Of those firms, 1,039 had revenue of less than $25 million. Based on this data, the Commission estimates that the majority of “All Other Telecommunications” firms can be considered small.

33. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities. The Second FNPRM includes proposals that may alter the Commission's current information collection, reporting, recordkeeping, or compliance requirements for small entities. Specifically, the proposal to extend call blocking mandates to require all downstream providers to block the texts from upstream providers that fail to block after Commission notification, and requiring providers to block texts based on content-neutral analytics would create new obligations for small entities and other providers. Similarly, establishing a 24-hour traceback response requirement for text messaging and requiring providers to make email-to-text an opt in service would also impose new compliance obligations on all providers, including small businesses. Additional blocking requirements, if adopted, such as requiring originating providers to block texts after notification from the Commission that the texts are likely to be illegal should not be a burden for small entities due to the fact that mobile wireless providers are currently blocking texts that are likely to be illegal. The Commission anticipates that the information it will receive relating to cost and benefit analyses will help identify and evaluate relevant compliance matters for small entities, including compliance costs and other burdens that may result from the proposals and inquiries we make in the Second FNPRM.

34. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its 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 such small entities; (3) the use of performance, rather than design, standards; and (4) and exemption from coverage of the rule, or any part thereof, for such small entities.” In the Second FNPRM the Commission considered and seeks comment on several alternatives that may significantly impact small entities. As the Commission evaluates additional blocking requirements to protect consumers from illegal texts, the Commission seeks comment on how to define originating providers, and whether it should apply these rules to some other entity in the chain to better protect consumers. The Commission proposes blocking messages based on their source, but considers alternatively whether they should be blocked on other criteria such as traffic that is “substantially similar” to blocked texts. In addition, the Commission seeks comment on alternatives to requiring providers to block texts based on content-neutral reasonable analytics. The Commission also requests comment on alternatives to the proposed blocking or mitigation rules that would help to protect consumers from unwanted and illegal texts. The Commission expects to fully consider whether any of the costs associated with the proposed text blocking requirements can be alleviated for small entities and any alternatives to minimize the economic impact for small entities following the review of comments filed in response to the Second FNPRM.

35. Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules. None.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 64 as follows:

This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM), FCC 23-115, adopted on December 19, 2023 and released on December 21, 2023. The full text of this document is available electronically via the Commission's website at: https://docs.fcc.gov/public/attachments/FCC-23-115A1.pdf. To request materials in accessible formats for people with disabilities ( e.g., Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Comments should address: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

1. This Notice of Proposed Rulemaking ( NPRM ) proposes to amend the Commission's rules to require notification to the Commission when a blackout of a broadcast television station, or stations, occurs on a video programming service offered by a multichannel video programming distributor (MVPD) for 24 hours or more due to a breakdown in retransmission consent negotiations between broadcasters and MVPDs. The proposed reporting framework would require public notice to the Commission of the beginning and resolution of any blackout and submission of information about the number of subscribers affected (which we propose may be designated as confidential). By requiring timely notification of broadcast station blackouts in a centralized, Commission-hosted database, these proposed reporting requirements would ensure that the Commission and public receive prompt and accurate information about critical MVPD service disruptions involving broadcast stations when they occur.

2. The Communications Act of 1934, as amended (the Act), requires that cable operators, satellite TV providers, and other MVPDs obtain a broadcast TV station's consent to lawfully retransmit the signal of a broadcast station to subscribers. 1 Commercial stations may either give consent by demanding carriage (must carry) or seek to negotiate for compensation in exchange for carriage (retransmission consent), and may switch between these choices every three years. 2 If a former “must carry” station elects retransmission consent but is unable to reach agreement for carriage, or the parties to an existing retransmission consent agreement do not extend, renew, or revise that agreement prior to its expiration, the MVPD loses the right to carry the signal. The result is a “blackout” of that existing broadcast programming on the MVPD platform. 3 When these broadcast station blackouts occur, the MVPD's subscribers typically lose access through their MVPD service to the station's entire signal, including both the national and local programming provided by the broadcaster. 4 Thus, if the blacked-out broadcast station was owned by or affiliated with a national broadcast network—such as ABC, CBS, FOX, NBC, The CW, Telemundo, or Univision—subscribers would be unable to access through their MVPD service that broadcaster's network programming as well as the local news, traffic, weather, and emergency information programming provided by their local station.

3. Over the past decade, data indicates that the number of blackouts resulting from unsuccessful retransmission consent negotiations has increased dramatically. For the first 20 years of the retransmission consent regime, S&P Capital IQ reports that there were a total of 81 failed retransmission consent negotiations that resulted in blackouts of 447 broadcast TV stations in 365 markets, with two thirds of the impasses occurring just in the last three years of that period, from 2011 to 2014. 5 This increase in the number of blackouts has persisted for over a decade, and the impact of each individual blackout has increased as more stations are taken off the air for longer periods of time. In 2019 alone, just 18 retransmission consent impasses resulted in 272 station blackouts that spanned 205 markets and affected 26.5 million subscribers. 6 According to S&P Capital IQ, these blackouts “on average remained in effect for 171 days—higher than the 98-day average in 2018, 33 days in 2017 and 52 days in 2016.”  7 Some MVPD subscribers in over half of television markets continue to experience blackouts every year. 8

4. Members of Congress have expressed concern about the impact of broadcast station blackouts. After a March 2022 FCC oversight hearing, Rep. Clarke of New York noted that “[o]ver the last two years, there were an estimated 460 blackouts associated with retransmission consent impasses, resulting in consumers losing access to their favorite shows. Unfortunately, these blackouts may be used as leverage during retransmission negotiations by broadcasters at the expense of consumer access to television programming.”  9 In addition, during high-profile retransmission consent disputes, the Commission often receives letters from members of Congress urging the Commission to take action to prevent or end a broadcast station blackout. 10

5. Added as part of the Cable Television Consumer Protection and Competition Act of 1992 (1992 Cable Act), section 325 of the Act prohibits broadcast television stations and MVPDs from “failing to negotiate [retransmission consent] in good faith,”  11 and the Commission's rules provide a framework for determining whether those negotiations are in fact conducted in good faith. 12 If a broadcast station or MVPD believes the other party has not acted in good faith, it may file a good faith complaint with the Commission either before or after a carriage agreement is signed. 13

6. Congress has not, however, authorized the Commission to require that parties resolve retransmission consent disputes with carriage agreements, or to force carriage in the absence of an agreement. 14 While section 325 of the Act grants the Commission authority to establish regulations governing retransmission consent negotiations, the Commission has repeatedly determined that this authority does not extend to requiring carriage of a broadcast station during a retransmission dispute. 15 Given this limitation, the Commission's good faith rules focus on “develop[ing] and enforce[ing] a process” conducive to negotiation rather than “sit[ting] in judgment of the terms of every retransmission consent agreement[.]”  16 Nevertheless, broadcast station blackouts have remained a cause for concern. In a 2011 action proposing amendments to the Commission's good faith rules, the Commission observed that “[i]n recent times, the actual and threatened service disruptions resulting from increasingly contentious retransmission consent disputes present a growing inconvenience and source of confusion for consumers.”  17 Since the Commission made that observation, the number of retransmission consent impasses has continued to increase, causing service disruptions for consumers. 18

7. In addition to establishing the retransmission consent regime, the 1992 Cable Act also bolstered the Commission's customer service authority over cable and satellite TV providers. Pursuant to sections 632(b) and 335(a), the Commission may adopt customer service requirements for cable operators and public interest regulations for DBS providers. 19 Section 632(b) of the Act directs the Commission to “establish standards by which cable operators may fulfill their customer service requirements” and specifies a set of minimum customer service areas that the adopted standards must cover. 20 In 1993, the Commission implemented this mandate in § 76.309 of its rules, adopting a single set of customer service requirements for cable operators in the areas Congress specified. 21 While at that time the Commission declined to adopt additional standards in areas not specified in the statute, it reserved the right to revise and supplement the standards. 22

8. Similarly, section 335(a) authorizes the Commission to impose “public interest or other requirements for providing video programming” on DBS providers. 23 The statute directs the Commission to impose certain minimum obligations on DBS providers, including complying with the political programming requirements of sections 312(a)(7) and 315 of the Act. 24 It also directs the Commission to examine opportunities that may serve the principle of localism in the Act. 25 As with section 632, when implementing section 335 of the Act, the Commission declined to impose any additional public interest obligations on DBS providers beyond the minimum protections specified in the statute. 26 The Commission explained that DBS service “is still a relatively young industry and we decline to impose any additional obligations on the DBS industry before we see how DBS serves the public.”  27

9. Currently, neither broadcast stations nor MVPDs are under any obligation to report to the Commission MVPD service disruptions involving broadcast programming. Neither the Commission nor the public has a systematic method for learning of significant MVPD service disruptions involving broadcast programming. 28 When a party to a retransmission consent negotiation files a complaint with the Commission alleging a violation of the Commission's good faith negotiation rules, the complaint process requires the parties to provide the Commission with relevant details about the blackout and each party's assertions as to why the negotiation reached an impasse. Since the adoption of the good faith negotiation rules in 2000, there have been relatively few complaints alleging violations of the Commission's good faith negotiation rules despite an escalation in the number of stalled or failed retransmission consent negotiations resulting in blackouts. 29 The Commission usually learns of broadcast station blackouts on MVPD platforms through reports of disputes in the media or informal communication with staff. This ad hoc process does not provide the Commission, Congress, or the public  30 with timely or specific information regarding service disruptions. 31 Accordingly, we initiate this rulemaking.

10. In the discussion below, we propose to require that MVPDs report retransmission consent blackouts within 48 hours and notify the Commission within two business days of its resolution. We discuss the specific aspects of the proposed reporting obligations and our proposed rule, and we address the Commission's authority to adopt the proposed requirements. We request comment on all aspects of the proposal, including the proposed rule as set forth below in Appendix A.

11. Given the data discussed above, we are concerned about the increasing number and duration of broadcast station blackouts on MVPD platforms across the country and the Commission's lack of ready access to basic information about such service disruptions. Given that many broadcast station blackouts on MVPD platforms occur without either party filing a complaint with the Commission, we cannot rely on good faith complaints to inform us when a deal impasse has resulted in a blackout, nor can we consider such complaints an accurate sampling of significant service disruptions. In addition, members of Congress regularly ask the Commission for information on broadcast station blackouts when they occur. Often the Commission does not have access to this important information through a consistent, reliable, and systematic means. To close this information gap, we tentatively conclude that obtaining blackout information from MVPDs would be the most effective method for the Commission to gain important and timely information about broadcast station blackouts occurring across the country and better fulfill our statutory obligation involving the retransmission consent negotiation process. 32

12. Access to a centralized source of information about where and when broadcast station blackouts occur would be beneficial not only to the Commission, but also to consumers. To make informed decisions regarding video service, consumers must have access to easily available, accurate, and timely information about such services. While cable subscribers receive notice from their cable operator when an individual broadcast station blackout affects their own channel lineup and video service, 33 on a broader scale, consumers generally do not have access to a consolidated source of information about broadcast station blackouts occurring in aggregate. Such information would increase transparency about the frequency and duration of blackouts and help consumers understand the extent to which blackouts might be a problem not just in their own locality but in other areas of the country as well. For example, having aggregate data about blackouts may be a useful metric for consumers looking for a new MVPD service provider. For consumers that place a premium on continuity of service, having access to this data may enable them to investigate which MVPD service providers—as well as broadcast affiliates—have a stronger history of blackouts.

13. Entities Responsible for Reporting. We seek comment on requiring affected MVPDs that stop carrying broadcast signals pursuant to expired retransmission consent agreements, including cable operators and DBS providers (Reporting Entities), 34 to comply with the proposed blackout reporting requirements, as more fully discussed below. While both MVPDs and broadcasters are subject to the requirements of section 325 of the Act and the Commission's good faith rules, it is the responsibility of the MVPD, rather than the broadcaster, to stop retransmitting the broadcast station's signal, and thereby remove the programming that is subject to blackout from their MVPD platforms upon the expiration of a carriage agreement. 35 Thus, as a practical matter, it is the MVPD who has the most ready access to and first-hand knowledge of when and where a broadcast station blackout occurs and which subscribers are affected, thereby ensuring that the Commission would receive the most complete, accurate, and up-to-date information. Further, as it is the MVPD subscribers who are directly impacted by these blackouts, we believe it makes the most sense for MVPDs to be responsible for reporting blackout information through the reporting portal. As a result, we tentatively conclude it would be least burdensome on MVPDs to report this information promptly and accurately to the Commission.

14. We therefore propose requiring MVPDs to notify the Commission of any blackouts of a broadcast station or stations that occur on their systems due to a loss of retransmission consent, and we seek comment on this proposal. Under this proposal, MVPDs would report incidents during which broadcast programming is disrupted for over 24 hours as a result of an inability to obtain a broadcast station's consent to retransmit its signal. We seek comment on these understandings and this proposal. For example, are there circumstances in which the broadcaster, rather than the MVPD, removes the broadcast station(s) from the MVPD's platform?

15. Alternatively, we seek comment on whether we should impose the reporting obligation solely on broadcasters or impose a joint blackout reporting requirement on both MVPDs and broadcasters. Would adopting a broadcaster-only reporting requirement or imposing a joint reporting obligation on both MVPDs and broadcasters provide additional benefits to the public? Do broadcasters have access to different, additional, or more timely information about blackouts that would be beneficial for the public to see in real-time? If reporting obligations were the same for both parties, would the Commission need to address or attempt to resolve conflicting reports? Instead of requiring broadcasters to report blackouts, should we rely instead on broadcasters voluntarily providing additional information to supplement blackout notices submitted by MVPDs they believe contain inaccurate or incomplete information?

16. Reporting Framework. As discussed in more detail below, we propose requiring MVPDs to notify the Commission of both the start and conclusion of a broadcast station blackout. The initial notification would provide basic blackout information, both public and confidential, to the Commission within 48 hours of the start of a reportable broadcast station blackout (Initial Blackout Notification). The final notification, submitted no later than two business days after the end of the reportable broadcast station blackout, would publicly identify the date retransmission resumed (Final Blackout Notification). We propose that this information be collected through an online reporting portal designed, hosted, and administered by the Commission. 36 Under our proposal, we will delegate to the Media Bureau the authority to issue a public notice giving Reporting Entities notice of the specific reporting procedures to submit blackout information via the reporting portal and identifying the date on which the reporting requirement would become effective. Public blackout information collected through the portal would then be available on the Commission's website. We seek comment generally on this proposal and on the specifics below. In addition, to the extent we adopt a reporting requirement for broadcasters, we seek comment on whether this same reporting framework should be applied to broadcasters or whether a different approach is appropriate for broadcasters.

17. To streamline reporting, we propose creating an online reporting portal, modeled after the Commission's Network Outage Reporting System (NORS). 37 The proposed data to be reported would be filed with the Commission via this web-based system. As with NORS, this system would use an electronic template to promote the ease of reporting and encryption technology to ensure the security of the information fields. The proposed blackout information to be reported would be available to the public, except for more sensitive information regarding subscribers, which Reporting Entities may designate as confidential. We have aimed to tailor the proposed requirements so that they impose a minimal burden on Reporting Entities while still ensuring that the Commission and the public have access to critical information on service disruptions. 38 We seek comment on this approach.

18. We tentatively conclude that the timely provision and compilation of blackout information would allow the Commission and the public to systematically track and analyze information on broadcast station blackouts on MVPD platforms across the country. The availability of this information would also help the Commission determine the frequency and duration of blackouts nationwide and identify any statistically meaningful trends across blackouts. Without such reporting, the Commission will continue to have limited visibility into broadcast station blackouts. 39 In the long run, this impairs the Commission's ability to oversee the retransmission consent negotiation process as intended by Congress. The prompt provision of blackout information will allow the Commission to more effectively discharge its statutory responsibilities by better monitoring breakdowns in retransmission consent negotiations. 40 We seek comment on this analysis.

19. We seek comment on the specific proposals that follow for implementing the proposed reporting requirements. In particular, we seek comment on whether reporting obligations should be mandatory or voluntary; the definition of a broadcast station blackout; the threshold for reporting a broadcast station blackout; how to submit the proposed filings; what information should be disclosed about broadcast station blackouts; what the costs and benefits of our proposed rule might be; and whether better alternatives exist, including a more streamlined rule for small entities.

20. Mandatory Reporting. We propose that blackout reporting be a mandatory obligation. Mandatory reporting would permit the Commission and the public to obtain a comprehensive, timely view of broadcast station blackouts occurring on MVPD platforms nationwide. This information would be beneficial to the Commission's efforts to keep abreast of the impact these blackouts have on viewers, local broadcasting, and MVPD service. In contrast, voluntary reporting would likely create substantial gaps in data that would significantly impair such efforts, as has been the Commission's experience in the past with voluntary reporting. 41 Considering these factors, we tentatively conclude that voluntary reporting would not sufficiently serve the information collection purposes of this reporting initiative. We seek comment on this tentative conclusion. Are there other regulatory alternatives the Commission should consider?

21. Definition of Broadcast Station Blackout. For the purposes of this reporting rule, we propose defining a “Broadcast Station Blackout” as “any time an MVPD ceases retransmission of a commercial television broadcast station's signal due to a lapse of the broadcast station's consent for such retransmission.”  42 With this definition, we seek to encompass all blackouts occurring as a result of a retransmission consent dispute, and thus, in the context of blackout reporting, include all commercial full power, class A, and low power television (LPTV) broadcast stations within the definition of a “commercial television broadcast station.”  43 We tentatively conclude it is appropriate to include class A and LPTV stations within the definition of “commercial television broadcast station” here because these stations, like full power stations, are subject to the requirements of section 325 of the Act and the Commission's good faith rules. 44 We seek comment on this analysis and our proposed definition. Have there been or could there be instances in which, due to a retransmission consent dispute, MVPDs are required to cease retransmitting only some programming streams of a broadcast station and not others (for example, only the primary stream, but not the multichannel streams)?  45 If so, does the proposed definition adequately cover these scenarios? Are there any reasons why Broadcast Station Blackouts involving class A and LPTV stations should not be subject to the proposed reporting requirements?

22. Reporting Threshold. We propose requiring Reporting Entities to report all Broadcast Station Blackouts that last for over 24 hours. We tentatively conclude this reporting threshold will provide a sufficient level of information to build a more precise and complete picture of the state of blackouts that have a significant impact on consumers. Collecting information on all blackouts lasting over 24 hours will allow the Commission and the public to gain a better understanding of the frequency and duration of blackouts occurring in the retransmission consent marketplace. Blackouts lasting over 24 hours are more likely to cause consumer harm, whereas blackouts of shorter duration are more likely to have a lesser impact on viewers, and thus we propose that we should not impose reporting requirements on blackouts lasting less than 24 hours. We therefore tentatively conclude this threshold appropriately balances the burdens of Reporting Entities and the information needs of the Commission and consumers. We seek comment on the proposed reporting threshold and whether there should be any additional reporting thresholds. For example, should we also require reporting for blackouts based on a metric other than duration of the service disruption? If so, what metrics should be used to determine what would qualify as a reportable event? Do commenters believe the proposed reporting threshold is appropriate, or should reporting obligations be triggered by blackouts of longer or shorter duration? If proposing another reporting threshold, commenters should explain why they think it is more appropriate.

23. Reporting Process. Under our proposed rule, Reporting Entities would submit two notifications: an Initial Blackout Notification shortly after the beginning of a reportable Broadcast Station Blackout and a Final Blackout Notification after resumption of carriage. All information would be submitted to the Commission within a designated online reporting portal in accordance with procedures further specified in a Bureau-issued public notice following adoption of these proposed reporting requirements. 46 We seek comment on this proposed rule and the details discussed below.

24. Initial Blackout Notification. We propose that, in the event of a Broadcast Station Blackout lasting over 24 hours, after that threshold is met, the Reporting Entity must submit an Initial Blackout Notification as soon as practicable, but no later than 48 hours after the initial interruption to the broadcast station programming. 47 The following information would be reported in the Notification and available to the public: the name of the Reporting Entity; the station or stations no longer being retransmitted, including network affiliation(s), if any, of each affected primary and multicast stream; the name of the broadcast station group, if any, that owns the station(s); the Designated Market Areas in which affected subscribers reside; and the date and time of the initial interruption to programming. 48 Additionally, Reporting Entities would report the number of subscribers affected. 49 Critically, subscriber information is one of the key metrics by which a blackout's impact can be measured. We recognize that market-by-market subscriber data can be particularly sensitive and is information not routinely made public by MVPDs. Therefore we propose giving Reporting Entities the option to submit the subscriber data provided confidentially. 50 Reporting Entities would be able to opt for confidential treatment of the subscriber data provided by designating the data as confidential within the portal, rather than filing a separate request with the Commission. 51 We encourage Reporting Entities to submit an Initial Blackout Notification as soon as practicable, but do not believe that this proposed reporting obligation would require more than 24 hours to complete after a blackout becomes reportable. We tentatively conclude that the 48-hour reporting window reasonably balances the benefit of receiving prompt notice of a blackout with the burden of reporting by giving Reporting Entities a sufficient amount of time to gather and submit the proposed information.

25. We invite comment on this proposed information collection, the 48-hour reporting window, the public treatment of the non-subscriber data, and the confidential treatment of the subscriber data. Would it be beneficial to require entities to provide any additional information as part of the Initial Blackout Notification? Would it be beneficial to also have Reporting Entities identify the specific areas (for example, counties or cable communities) affected within the DMAs identified? If so, should entities report such information publicly or confidentially? Would any of the proposed disclosures be difficult for a Reporting Entity to provide within the proposed reporting window, and if so, why? Do commenters believe that the proposed 48-hour reporting window is sufficient, or do they believe a reporting window of longer or shorter duration would be more appropriate? If proposing another reporting window, commenters should explain why they think that time period is more appropriate. Is there any non-subscriber information disclosed in the Initial Blackout Notification for which Reporting Entities should be able to opt for confidential treatment by designating the data as confidential within the portal, rather than filing a separate request with the Commission? If so, why? Conversely, is there any reason why the subscriber information provided should not be given such confidential treatment?

26. Final Blackout Notification. No later than two business days after the resumption of carriage to subscribers, we propose that Reporting Entities submit a Final Blackout Notification, which would update the initial blackout notice provided. 52 The information in this Final Blackout Notification would be available to the public and would report the date on which retransmission resumed for each station included in the Initial Blackout Notification. 53 As an update to the Initial Blackout Notification, we envision that Reporting Entities will be able to easily update the information in the reporting portal for each station as it resumes retransmission. We request comment on this proposed Notification, including the information disclosures required, the proposed two-business-day reporting window, and the public treatment of the disclosures. In the event of a partial end to a reported blackout involving multiple stations (that is, the parties have resolved the retransmission consent dispute with respect to some of the blacked out stations, but not others), should reporting entities be required, as proposed, to timely report the resumption of carriage for each resumed station until all stations included in the Initial Blackout Notification have been accounted for? Or should Reporting Entities only be required to submit a report once the dispute has been resolved for all stations included in the initial notification (with different carriage resumption dates for different stations listed as appropriate)? Is there any other information we should request as part of this final notice? Would any of the proposed disclosures be difficult for a Reporting Entity to provide within the proposed reporting window? Are there any reasons why the final Notification should not be publicly available, and if so, why? Is there a point at which the Commission should consider a blackout to be permanent, or should we consider blackouts to be ongoing until a final notification is filed regardless of their duration?

27. Submissions. We propose providing an online reporting portal through which entities would be able to submit blackout notices to the Commission. We envision these notices would be made through a standardized form in the portal, fillable by the Reporting Entity, with fields for the various data categories. As noted above, the Bureau would announce specific instructions via public notice. We tentatively conclude that this approach to collecting data ensures that the Commission learns of reportable broadcast station blackouts in a timely manner and, at the same time, minimizes the amount of time and effort required to comply with the reporting requirements. We seek comment on how best to share the information collected from the Initial and Final Blackout Notifications with the public. For example, in addition to publicly posting the non-confidential portions of the blackout notices, should the web portal include a public-facing, searchable database of the information collected from the blackout notices? Or would it suffice for the Commission to publicly post the blackout notices by date of submission?

28. Costs and Benefits. We tentatively conclude this process is reasonable in light of the significant benefits to the Commission, Congress, and the public from having timely access to important and accurate information on service disruptions. As detailed above, we anticipate that the availability of this blackout information will have tangible benefits for the Commission and the public. 54 Moreover, we tentatively conclude that Reporting Entities already collect this information in the ordinary course of business for their internal use. Thus, we expect the only burden associated with the proposed reporting requirements would be the time required to complete the two notifications. We anticipate that electronic submission through the reporting portal will minimize the amount of time and effort that will be required to complete the proposed reporting obligations. 55 As a result, we expect that complying with our proposed reporting requirements would create a minimal administrative burden, and that, on balance, the benefits to the public resulting from compiling and analyzing this blackout information would outweigh any potential burden. We seek comment on the reasonableness of the proposed reporting process, and we request comment on relevant types of blackout information already being collected by cable operators, DBS providers, other MVPDs, and broadcast stations so that we can best align our metrics with what is already available to them. We invite comment on the burdens that might be imposed by the adoption of the proposed reporting requirements, and in particular welcome comments quantifying that burden and recommendations to mitigate it. Would collecting and reporting as proposed be more burdensome for small entities?  56 If so, why and to what degree? In addition, we seek comment on the benefits and drawbacks of treating the non-subscriber information disclosures in the Initial and Final Blackout Notification as public information. Is there any alternative reporting approach that would maximize the potential benefits and accomplish the proceeding's objectives in a less costly, less burdensome, and/or more effective manner? Should there be an additional or alternative reporting threshold for small entities? If so, what should that reporting threshold be and why is it necessary? Alternatively, is the burden of reporting outweighed by the benefits gained from the ability to better monitor and study reported blackouts?

29. Digital Equity and Inclusion. The Commission, as part of its continuing effort to advance digital equity for all, 57 including people of color, persons with disabilities, persons who live in rural or Tribal areas, and others who are or have been historically underserved, marginalized, or adversely affected by persistent poverty or inequality, invites comment on any equity-related considerations  58 and benefits (if any) that may be associated with the proposals and issues discussed herein. Specifically, we seek comment on how our proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility, as well the scope of the Commission's relevant legal authority.

30. We tentatively conclude the Commission has ample authority to adopt the proposed blackout reporting requirements. Section 325(b)(3)(A) of the Act grants the Commission broad authority to “establish regulations to govern the exercise by television broadcast stations of the right to grant retransmission consent.”  59 The Commission has previously concluded that “this provision grants the Commission authority to adopt rules governing retransmission consent negotiations[.]”  60 Separately and in addition, section 325(b)(3)(C) mandates that broadcasters and MVPDs negotiate retransmission consent in good faith. 61 The Commission has express statutory authority to adopt rules implementing this requirement. 62 In past actions it has recognized that “by imposing a good faith obligation, Congress intended that the Commission develop and enforce a process” conducive to good faith negotiations  63 rather than “dictate the outcome” of such negotiations. 64 We tentatively conclude the proposed blackout reporting requirements fall squarely within the Commission's oversight authority under both section 325(b)(3)(A) and section 325(b)(3)(C). Specifically, we tentatively find that timely notification about a blackout and access to accurate information about the surrounding circumstances is critical to carrying out our statutory mission. Reporting blackout information is the most efficient means for the Commission to obtain critical information needed to monitor ongoing blackout situations that could result in the filing of a retransmission consent complaint. Indeed, we expect that access to timely reporting information could result in tangible improvements to the retransmission consent negotiation process by allowing Commission intervention to get negotiations back on track if necessary, consistent with statutory requirements. In that way, protracted blackouts may be avoided. Thus, we tentatively find that requiring notification to the Commission when broadcast programming has gone dark on subscribers' MVPD service because of failed retransmission consent negotiations will allow the Commission to better govern the retransmission consent negotiation process as envisioned under the Communications Act.

31. The Commission also has broad information collection authority under section 403 of the Act, which grants the Commission discretion to require disclosures on matters, like retransmission consent, that fall within the Commission's jurisdiction. 65 We tentatively find that a retransmission consent-related blackout that lasts more than 24 hours warrants further inquiry by the Commission about the circumstances surrounding that blackout, to ensure that all parties are fulfilling their statutory obligation to negotiate in good faith. In addition, the Act grants the Commission broad authority to take the steps necessary to implement its mandates, and thus provides concurrent authority for the proposed blackout reporting rules. Sections 4(i) and 303 generally authorize the Commission to take any actions “as may be necessary” to ensure that the Commission can properly govern the retransmission consent negotiation process and thereby ensure that broadcasters and MVPDs fulfill their statutory obligation to negotiate retransmission consent in good faith. 66

32. We also tentatively conclude that there is statutory support for the proposed reporting requirement in sections 632(b) and 335(a) of the Act. 67 Under section 632(b), the Commission can adopt customer service requirements for cable operators. 68 And, pursuant to section 335(a), the Commission has authority to impose on DBS providers public interest requirements for “providing video programming,” which we tentatively conclude includes reports on video programming blackouts. 69 In addition, we tentatively conclude that informing the Commission and the public about the availability of broadcast signals both serves the public interest and helps consumers make informed choices concerning video programming services. Blackout reporting will give the public greater visibility into the breadth and impact of blackouts arising from negotiation disputes and provide a reliable source of information about the entities most frequently involved in blackouts. We tentatively conclude that the proposed reporting requirements are customer service and public interest requirements that squarely fall within our authority under sections 632(b) and 335(a). As the Commission recently explained, “Consumer access to clear, easy-to-understand, and accurate information is central to a well-functioning marketplace that encourages competition, innovation, low prices, and high-quality services. The same information empowers consumers to choose services that best meet their needs and matches their budgets and ensures that they are not surprised by unexpected charges or service quality that falls short of their expectations.”  70 These are some of the same goals that the proposed reporting requirements intend to accomplish. We seek comment on our authority to adopt blackout reporting requirements for cable operators and DBS providers under these provisions.

33. To the extent we adopt blackout reporting requirements for broadcasters, we tentatively conclude that our authority under Title III allows us to adopt such requirements to serve the public interest objectives stated above. Title III endows the Commission with “expansive powers” and a “comprehensive mandate to `encourage the larger and more effective use of radio in the public interest.' ”  71 This mandate is reinforced by section 307(b), which directs the Commission to “provide a fair, efficient, and equitable distribution” of service throughout the country. 72 Section 303 of the Act grants the Commission authority to establish operational obligations for licensees that further the goals and requirements of the Act if such obligations are necessary for the “public convenience, interest, or necessity” and are not inconsistent with other provisions of law. 73 In addition, sections 307 and 316 of the Act allow the Commission to authorize the issuance of licenses or adopt new conditions on existing licenses if such actions will promote public interest, convenience, and necessity. 74 Here, we tentatively conclude that the proposed reporting requirements would serve the public interest by informing the public about the availability of local broadcast signals on MVPD platforms and by providing the Commission and the public a systematic way to track broadcast station blackouts occurring on MVPD platforms. While some MVPD subscribers could replace the blacked out local broadcast signals with the broadcaster's own over-the-air transmission, not all subscribers would be able to do so because they either lack the necessary equipment or live in locations where they are unable to sufficiently receive the over-the-air transmission. 75 Therefore, over-the-air transmission of local broadcast signals may not be a reasonable substitute for the retransmission of local broadcast programming on MVPD platforms. We tentatively conclude that the proposed blackout reporting requirements would “encourage the larger and more effective use of radio in the public interest” and promote the fair, efficient, and equitable distribution” of service throughout the country by informing the Commission and the public about the disruption of local broadcast signal carriage on MVPD platforms. Therefore, we tentatively conclude that it serves the public interest for the Commission and the public to have a centralized database to be able to systematically monitor obstacles to signal and programming availability. We seek comment on these and other potentially relevant sources of authority.

34. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), 76 the Federal Communications Commission (Commission) has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies proposed in the NPRM. 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 NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). 77 In addition, the NPRM and the IRFA (or summaries thereof) will be published in the Federal Register . 78

35. In the NPRM, the Commission considers and seeks comment on a proposal to impose reporting requirements for broadcast television station blackouts that occur as result of a retransmission consent dispute. Over the past decade, S&P Capital IQ data indicates that the number of blackouts resulting from unsuccessful retransmission consent negotiations has increased dramatically, causing service disruptions for consumers. The Commission usually learns of broadcast station blackouts through reports of disputes in the media or informal communication with staff, which does not allow the Commission or the public access to timely information on these service disruptions. Under this proposal, cable operators, satellite TV providers, and other multichannel video programming distributors (MVPDs) would be required to notify the Commission when a broadcast station blackout lasting over 24 hours occurs on their system. The proposed reporting framework would require public notice to the Commission of the beginning and resolution of any blackout and submission of confidential information about its scope. We tentatively conclude that this proposed rule would ensure that the Commission receives prompt and accurate information about critical broadcast service disruptions when they occur. The availability of this information would also help the Commission determine the extent of blackouts nationwide, identify recurring problems, determine whether actions can be taken to help prevent future blackouts from occurring, and identify any statistically meaningful trends across blackouts.

36. The proposed action is authorized pursuant to sections 1, 4(i), 4(j), 301, 303(b), 303(g), 303(j), 303(r), 303(v), 307, 309, 316, 325, 335(a), 403, and 632 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 301, 303(b), 303(g), 303(j), 303(r), 303(v), 307, 309, 316, 325, 335(a), 403, and 552.

37. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. 79 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”  80 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 81 A small business concern is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. 82

38. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. 83 Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. 84 By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry. 85 Wired Telecommunications Carriers are also referred to as wireline carriers or fixed local service providers. 86