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 SEPARATE  STATEMENT  OF  COMMISSIONER  KEVIN  J  .  MARTIN,  APPROVING  IN  PART  AND  CONCURRING  IN  PART 
 Re:  Year  2000  Biennial  Regulatory  Review  –  Amendment  of  Part  22  of  the  Commission’s  Rules  To  Modify  or  Eliminate  Outdated  Rules  Affecting  the 
 Cellular  Radiotelephone  Service  and  other  Commercial  Mobile  Radio  Services,  Report  and  Order,  WT  Docket  No.  01-  108 


 I  support  this  Order,  which  modifies  or  eliminates  a  number  of  our  Part  22  rules  pursuant  to  the  biennial  review  mandated  by  section  11  of  the  Communications  Act.  I 
 concur,  however,  with  respect  to  the  Order’s  discussion  of  the  legal  standard  for  Section  11’s  biennial  review.  I  also  write  separately  to  emphasize  my  support  for  ensuring  that 
 people  with  hearing  disabilities  have  sufficient  access  to  wireless  services. 
 Section  11  requires  the  Commission  to  review  its  regulations  for  providers  of  telecommunications  service  every  two  years  and  to  “determine  whether  any  such 
 regulation  is  no  longer  necessary  in  the  public  interest  as  the  result  of  meaningful  economic  competition  between  providers  of  such  service.”  47  U.  S.  C.  §  161(  a).  The 
 provision  then  mandates  that  “The  Commission  shall  repeal  or  modify  any  regulation  it  determines  to  be  no  longer  necessary  in  the  public  interest.”  Id.  §  161(  b). 


 While  I  agree  with  much  of  the  Order’s  discussion  of  Section  11’s  legal  standard  (see  Order  ¶  4)  –  as  well  as  the  Order’s  application  of  the  standard  to  the  regulations  at 
 issue  –  I  am  concerned  by  the  Order’s  failure  to  discuss  the  meaning  of  the  term  “necessary”  in  Section  11.  In  a  similar  context,  the  Commission  has  argued  that  the  term 
 “necessary”  means  only  “useful”  or  “appropriate.”  See  FCC’s  Petition  for  Rehearing  or  Rehearing  En  Banc,  Fox  Television  Stations,  Inc.  v.  FCC,  Nos.  00-  1222,  et  al.,  2002  WL 
 1343461,  at  5  (D.  C.  Cir.  Jun  21,  2002)  (“  Terms  such  as  ‘necessary’  and  ‘required’  must  be  read  in  their  statutory  context  and,  so  read,  can  reasonably  be  interpreted  as  meaning 
 ‘useful’  or  ‘appropriate’  rather  than  ‘indispensable’  or  ‘essential.  ’”).  As  I  have  argued  elsewhere,  I  believe  the  term  “necessary”  should  be  read  in  accordance  with  its  plain 
 meaning,  to  mean  something  closer  to  “essential.”  1  But  at  the  very  least,  I  think  the  Commission  should  clarify  that  the  term  means  something  more  than  merely  “useful”  or 
 “appropriate.”  Accordingly,  I  concur  in  the  item’s  discussion  of  Section  11’s  legal  standard. 


 I  also  wish  to  note  my  support  for  ensuring  that  people  with  hearing  disabilities  have  sufficient  access  to  wireless  services.  Currently,  hearing  disabled  people  must 
 generally  rely  on  analog  wireless  service,  because  most  digital  phones  cause  interference  to  most  hearing  aids  and  cochlear  implants.  For  this  reason,  among  others,  the  Order 


 1  See  Separate  Statement  of  Commissioner  Kevin  J.  Martin,  Verizon  Wireless’s  Petition  for  Partial 
 Forbearance  from  the  Commercial  Mobile  Radio  Services  Number  Portability  Obligation,  Memorandum  Opinion  and  Order,  WT  Docket  No.  01-  184,  CC  Docket  No.  95-  116  (adopted  July  16,  2002);  Separate 


 statement  of  Commissioner  Kevin  J.  Martin,  Implementation  of  the  Cable  Television  Consumer  Protection  and  Competition  Act  of  1992;  Development  of  Competition  and  Diversity  in  Video  Programming 
 Distribution:  Section  628(  c)(  5)  of  the  Communications  Act;  Sunset  of  Exclusive  Contract  Prohibition,  Report  and  Order,  CS  Docket  No.  01-  290  (adopted  June  13,  2002). 
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 leaves  the  requirement  that  cellular  carriers  provide  analog  service  in  place  for  another  five  years.  More  importantly,  the  Order  makes  clear  that  –  even  after  the  five-  year  period 
 –  the  Commission  will  not  eliminate  the  analog  requirement  if  hearing-  aid  compatible  digital  devices  are  still  not  available.  This  latter  point  was  fundamental  to  my  support  of 
 the  item. 
 Ultimately,  however,  the  Commission  must  ensure  the  availability  of  digital  phones  that  are  compatible  with  hearing  aids  and  cochlear  implants.  Fixing  the  digital 
 compatibility  problem,  rather  than  relegating  the  hearing  disabled  community  to  analog  phones,  is  the  real  solution.  I  thus  look  forward  to  tackling  that  issue  and  completing  our 
 proceeding  under  the  Hearing  Aid  Compatibility  Act  of  1988.  Completing  that  proceeding  should  be,  and  is,  a  priority  for  the  Commission. 
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