*Pages 1--57 from Microsoft Word - 30234* Federal Communications Commission FCC 03- 168 1 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Section 68.4( a) of the Commission’s Rules Governing Hearing Aid- Compatible Telephones ) ) ) ) ) ) ) WT Docket No. 01- 309 RM- 8658 REPORT AND ORDER Adopted: July 10, 2003 Released: August 14, 2003 By the Commission: Chairman Powell, Commissioner Abernathy, Commissioner Copps, Commissioner Martin, and Commissioner Adelstein issuing separate statements. I. INTRODUCTION ........................................................................................................................... 2 II. EXECUTIVE SUMMARY ............................................................................................................. 2 III. BACKGROUND ............................................................................................................................. 4 A. Hearing Aids and Wireless Phones..................................................................................... 4 B. The HAC Act and Existing Commission Rules.................................................................. 5 C. Efforts to Facilitate Wireless Accessibility......................................................................... 7 D. Technical Description of Hearing Aids and Digital Wireless Phones .............................. 11 IV. ANALYSIS OF STATUTORY CRITERIA.................................................................................. 12 A. Adverse Effect on Hearing Impaired Individuals ............................................................. 14 B. Public Interest ................................................................................................................... 16 C. Technological Feasibility.................................................................................................. 17 D. Marketability..................................................................................................................... 23 V. REQUIREMENTS FOR HEARING AID COMPATIBILITY OF WIRELESS PHONES.......... 23 A. Adoption of ANSI C63.19 Performance Levels as the Applicable Technical Standard ............................................................................................................................ 24 B. Implementation Requirements .......................................................................................... 28 C. Labeling, Reporting, and Outreach................................................................................... 33 D. Enforcement...................................................................................................................... 37 1 Federal Communications Commission FCC 03- 168 2 VI. PROCEDURAL MATTERS ......................................................................................................... 37 A. Regulatory Flexibility Act ................................................................................................ 37 B. Paperwork Reduction Act................................................................................................. 37 C. Accessible Formats ........................................................................................................... 38 VII. ORDERING CLAUSES................................................................................................................ 38 APPENDIX A – List of Commenters and Reply Commenters APPENDIX B – Final Regulatory Flexibility Analysis APPENDIX C – Final Rules I. INTRODUCTION 1. In this Report and Order, we modify the exemption for wireless phones under the Hearing Aid Compatibility Act of 1988 (HAC Act) 1 to require that digital wireless phones be capable of being effectively used with hearing aids. We find that modifying the exemption in the manner described below will extend the benefits of wireless telecommunications to individuals with hearing disabilities – including emergency, business, and social communications – thereby increasing the value of the wireless network for all Americans. 2. In order to make digital wireless phones accessible to individuals who use hearing aids or have cochlear implants, we find that digital wireless phone manufacturers and service providers should be required to take steps to reduce the amount of interference emitted from digital wireless phones and to provide the internal capability for telecoil coupling. In taking this action, we hope to enable every American to have access to digital wireless telecommunications. Because we find that the statutory requirements for modifying the exemption have been met, and because doing so will serve the important public interest in preserving access to wireless telecommunications for individuals with hearing disabilities, we conclude that the exemption should be modified to the extent described below. II. EXECUTIVE SUMMARY 3. In this Order, we take the following actions: (1) adopt certain performance levels set forth in a technical standard established by the American National Standards Institute (ANSI) as the applicable technical standard for compatibility of digital wireless phones with hearing aids; (2) require certain digital wireless phone models to provide reduced radio frequency (RF) interference (i. e., meet a “U3” rating under the ANSI standard), and require certain digital wireless phone models to provide telecoil coupling capability (i. e. meet a “U3T” rating under the ANSI standard); (3) require, within two years, each digital wireless phone manufacturer to make available to carriers and require each carrier providing digital wireless services to make available to 1 Section 710 of the Communications Act of 1934, as amended, 47 U. S. C. § 710( b)( 1)( B). 2 Federal Communications Commission FCC 03- 168 3 consumers at least two handset models for each air interface it offers which provide reduced RF emissions (“ U3” rating); (4) require each Tier I wireless carrier providing digital wireless services to make available to consumers within two years at least two handset models for each air interface it offers which provide reduced RF emissions (“ U3” rating) or 25 percent of the total number of phone models it offers, whichever is greater; (5) require, within three years, each digital wireless phone manufacturer to make available to carriers and require each carrier providing digital wireless services to make available to consumers at least two handset models for each air interface it offers which provide telecoil coupling (“ U3T” rating); (6) adopt a de minimis exception for certain digital wireless phone manufacturers and carriers; (7) encourage digital wireless phone manufacturers and service providers to offer at least one compliant handset that is a lower- priced model and one that has higher- end features; (8) require 50 percent of all digital wireless phone models offered by a manufacturer or carrier to be compliant with the reduced RF emissions requirements by February 18, 2008; (9) require wireless carriers and digital wireless handset manufacturers to report semiannually (every six months) on efforts toward compliance during the first three years, then annually thereafter through the fifth year of implementation; (10) require manufacturers to label packages containing compliant handsets and to make information available in the package or product manual, and require service providers to make available to consumers the performance ratings of compliant phones; (11) commit the Commission staff to deliver a report to the Commission shortly after three years from the effective date of this Order to examine the impact of these requirements, and which will form the basis for the Commission to initiate a proceeding soon after the report is issued to evaluate whether to increase or decrease the 2008 requirement to make 50 percent of phone models with reduced RF emissions, whether to adopt implementation benchmarks beyond 2008, and whether to otherwise modify the implementation requirements; (12) encourage hearing aid manufacturers to label their pre- customization products according to the ANSI standard; and (13) deny the petition of Myers Johnson, Inc., for revision of section 24.232 as it relates to directional wireless phone antennas. 4. We take these actions to facilitate the Congressional goal of ensuring access to telecommunications services for individuals with hearing disabilities. In light of the rising number of calls to emergency services placed by wireless phone users, preserving access to wireless telecommunications for individuals with hearing disabilities is critical. In addition to the public safety benefits, these actions will also extend to individuals with hearing disabilities the social, professional, and convenience benefits offered by wireless telecommunications as well. In light of our society’s increased reliance on wireless phones and the growing trend among wireless carriers to move away from analog services in favor of more efficient, feature- rich digital services, these steps will ensure that individuals with hearing disabilities continue to enjoy access to wireless telecommunications devices and services. 3 Federal Communications Commission FCC 03- 168 4 III. BACKGROUND A. Hearing Aids and Wireless Phones 5. Approximately one in ten Americans – 28 million – has some level of hearing loss, and this proportion increases to one in three among the population of people over 65 years of age. 2 As the median age of the population continues to rise, the proportion of Americans with hearing loss will likely increase. Approximately six million Americans use hearing aids to improve their hearing. 3 Hearing aids operate in one of two modes – acoustic coupling or telecoil coupling. Hearing aids operating in acoustic coupling mode receive and amplify all sounds surrounding the user, both desired sounds, such as a telephone’s audio signal, as well as unwanted ambient noise. Hearing aids operating in telecoil coupling mode avoid unwanted ambient noise by turning off the microphone and receiving only magnetic fields generated by telecoil- compatible telephones. 4 In the United States, about 25- 30 percent of hearing aids contain telecoils, which generally are used by individuals with profound hearing loss. 5 External accessories designed to generate a magnetic field to enable telecoil coupling help some hearing aid users, but can be cumbersome and are not usable by all hearing aid users. 6 6. Although analog wireless phones do not generally cause interference problems for hearing aid users, 7 digital wireless phones can cause interference to hearing aids and cochlear implants because of electromagnetic energy emitted by the phone’s antenna, backlight, or other components. This interference can be significant enough to prevent individuals with hearing aids or cochlear implants from using digital wireless phones and services. In addition, most wireless phones do not internally provide the capability to inductively couple with hearing aids containing telecoils, as wireline phones do. 8 7. Over the course of the last several years, wireless phones and services have increasingly become mass market consumer devices and services. As the Commission reported in its Eighth Annual CMRS Competition Report (Eighth Competition Report), penetration rates for wireless subscribers (as of December 2002) were approximately 49 percent of the United States population, and more than 55 percent of Americans between the ages of 15 and 59 have wireless phones. 9 In addition, while still 2 See SHHH Comments at 2; SHHH Ex Parte Fact Sheet (May 19, 2003). 3 See American Speech- Language- Hearing Association "Incidence and Prevalence of Hearing Loss and Hearing Aid Use in the United States - 2002 Edition" (visited June 24, 2003) . 4 See Self Help for Hard of Hearing People, “Hearing Loss, Sept.- Oct., 1996” (visited April 17, 2003) . See also HearingLoop. org “Frequent Questions” (visited June 26, 2003) . Audio signal- based magnetic fields, such as those produced by the voice coil of the speaker in hearing aid- compatible wireline telephones, are picked up by the hearing aid telecoil, amplified as needed, and converted back into sound by the hearing aid speaker. 5 See SHHH May 19, 2003, Ex Parte Fact Sheet; HIA Jan. 7, 2003, Ex Parte Presentation. Some commenters have claimed that at least some hearing aid users who have telecoils do not use them. See Cingular Dec. 18, 2002, Ex Parte at 5; AAES Comments at 6. 6 See Vickery Comments at 3; AG Bell Comments at 4, 6. 7 See ANSI ASC C63 SC8 Comments at 10. 8 See Vickery Comments at 19, 22. See also L. Kozma- Spytek, M. A., Research Audiologist, Gallaudet University Technology Access Program, Washington, D. C., “Digital Wireless Telephones and Hearing Aids” (visited June 17, 2003) and B. J. Wilson, “Why Don’t Cell Phones Work With Hearing Aids?” (visited Feb. 2, 2003) . 9 See Implementation of Section 6002( b) of the Omnibus Budget Reconciliation Act of 1993, Annual Report and Analysis of Competitive Market Conditions With Respect to Commercial Mobile Services Report, Eighth Report, at sections II. C. 1. b.( i) and II. C. 1.d. (2003) (Eighth Competition Report). 4 Federal Communications Commission FCC 03- 168 5 relatively small in number, more and more consumers are beginning to view their wireless phone as their primary phone. As reported in the Commission’s Seventh Competition Report, three to five percent of wireless customers use their wireless phone as their only phone, and according to a USA Today/ CNN/ Gallup poll, almost one in five wireless telephony users view their wireless phone as their primary phone. 10 And the number of customers subscribing to digital wireless service now makes up approximately 88 percent of all wireless subscribers, with 125 million subscribing to digital services and only 17 million subscribing to analog service. 11 In contrast to analog, digital technology provides better sound quality and increases spectral efficiency which, in turn, has permitted companies to offer calling plans with large buckets of relatively inexpensive minutes, free enhanced services such as voicemail and caller ID, and wireless data and mobile Internet offerings. 12 In addition, 30 to 50 percent of calls to 911 for emergency services now come from wireless phones. 13 Thus, as wireless service has evolved to become increasingly more important to Americans’ safety and quality of life, the need for individuals with hearing disabilities to have access to wireless services has become critical. As Congress and the Commission have recognized, individuals with disabilities need access to telecommunications service to ensure they can more fully participate in a society that increasingly relies on these services. B. The HAC Act and Existing Commission Rules 8. HAC Act. Understanding that telecommunications services are an essential component of our daily lives, Congress enacted the HAC Act in 1988 to provide access to telecommunications services for individuals with hearing disabilities. In adopting the HAC Act, the House of Representatives Report stated that “the inability to use all telephones imposes social and economic costs on not only the hearing impaired, but the whole nation.” 14 It further stated that “the hearing impaired should have access to every telephone like the non- hearing impaired.” 15 Therefore, the HAC Act was intended to enable individuals with hearing disabilities to use virtually every telephone. 16 Through the HAC Act, Congress charged the Commission with “establishing regulations as are necessary to ensure reasonable access to telephone service by persons with impaired hearing.” 17 Specifically, the HAC Act required the Commission to establish regulations to ensure that the enumerated “essential phones” would provide “internal means” for effective use of hearing aids designed to be compatible with telephones that meet established technical standards for hearing aid compatibility. 18 In addition, the statute required nearly all telephones 10 See Implementation of Section 6002( b) of the Omnibus Budget Reconciliation Act of 1993, Annual Report and Analysis of Competitive Market Conditions With Respect to Commercial Mobile Services Report, Seventh Report, 17 FCC Rcd 12985, 13017 (2003) (citing a poll that indicates one in five wireless telephony users considers their wireless phone to be their primary phone) (Seventh Competition Report). 11 Eighth Competition Report at section II. C. 1. b.( i). 12 Seventh Competition Report, 17 FCC Rcd 12985, 13009. 13 The National Emergency Number Association (NENA) estimates that, of the 150 million calls that were made to 911 in 2000, 45 million of them (30 percent) were made by wireless telephone users. NENA anticipates that, by 2005, the majority of 911 calls will be from wireless callers. See “Wireless 9- 1- 1 Overview” (visited June 26, 2003) (NENA Wireless 9- 1- 1 Overview). 14 See H. R. Rep. No. 100- 674, at 7 (1988) (House Report). 15 Id. 16 Id. at 3. 18 See 47 U. S. C. § 610( b)( 1)( B). Congress defined the “essential phones” required to comply as “only coin- operated phones, telephones provided for emergency use, and other telephones frequently needed for use by persons using [compatible] hearing aids.” See 47 U. S. C. § 610( b)( 4)( A). The Act also forbade the Commission from requiring retrofitting of equipment to achieve the purposes of the Act, except for coin- operated telephones and telephones provided for emergency use. See 47 U. S. C. § 610( f). 5 Federal Communications Commission FCC 03- 168 6 manufactured in the United States (other than for export) or imported for use in the United States after August 16, 1988, to be hearing aid compatible as defined in the statute. 19 9. Congress specifically exempted certain telephones, including telephones used with public mobile service (wireless phones), from the “essential phones” designation. Congress considered the exempted phones to be “secondary,” meaning that such phones were viewed at the time to be complements, as opposed to substitutes, for the “essential phones” it identified. 20 At the time of the HAC Act’s adoption, wireless phones were primarily business tools. However, members of Congress realized that wireless phones may play an increasingly vital role in our society. To make certain that the HAC Act kept pace with the evolution of telecommunications, it granted the Commission a means by which to revoke or limit the exemption for wireless phones. Thus, the statute directs the Commission to periodically assess the appropriateness of continuing the exemptions. 21 Specifically, the statute requires us to “revoke or otherwise limit” the exemptions if we determine that i. such revocation or limitation is in the public interest; ii. continuation of the exemption without such revocation or limitation would have an adverse effect on hearing- impaired individuals; iii. compliance with the requirements of [the rule] is technologically feasible for the telephones to which the exemption applies; and iv. compliance with the requirements of [the rule] would not increase costs to such an extent that the telephones to which the exemption applies could not be successfully marketed. 22 10. FCC Rules. The Commission initially adopted rules implementing the HAC Act in 1989. 23 In 1992, the Commission expanded the HAC requirements to apply to telephones in particular establishments, such as hospitals, hotels and motels, prisons, and workplaces. 24 In 1996, the Commission adopted regulations designed to ensure that individuals with hearing disabilities would be able to use “virtually all wireline phones in workplaces, confined settings, and hotels and motels.” 25 The Commission adopted rules relating to volume control to ensure that telephones were more accessible for 19 See 47 U. S. C. § 610( b)( 1). 20 See House Report at 9. See also 47 U. S. C. § 610( b)( 2)( A). Public mobile services are air- to- ground radiotelephone services, cellular radio telecommunications services, offshore radio services, rural radio services, public land mobile telephone services, and other common carrier radio communications services covered by Part 22 of our rules. See 47 U. S. C. § 610( f); 47 C. F. R. § 68. 3. The term public mobile services was subsequently reclassified as commercial mobile radio service (CMRS). See Implementation of Sections 3( n) and 332 of the Communications Act, Regulatory Treatment of Mobile Services, Second Report and Order, 9 FCC Rcd 1411 (1994) (implementing Section 6002( b) of the Omnibus Budget Reconciliation Act of 1993). 21 47 U. S. C. § 610( b)( 2)( C). 22 47 U. S. C. § 610( b)( 2)( C); 47 C. F. R. § 68. 4( a)( 4). Although the Commission announced that it would review the exemptions every five years, it has not done so since their initial promulgation in 1989. Access to Telecommunications Equipment and Services by the Hearing Impaired and Other Disabled Persons, 4 FCC Rcd 4596, 4600 (1989). 23 See Access to Telecommunications Equipment and Services by the Hearing Impaired and Other Disabled Persons, CC Docket No. 87- 124, First Report and Order, 4 FCC Rcd 4596 (1989). 24 See Access to Telecommunications Equipment and Services by Persons With Disabilities, CC Docket No. 87- 124, Notice of Proposed Rulemaking, 11 FCC Rcd 4338 (1995). The rules required that, with minor exceptions, all wireline telephones in hospitals and other health care facilities, in hotels and motels, in prisons, and in all workplaces be made telecoil compatible by May 1, 1993. The Commission subsequently stayed its rules and impaneled a Rulemaking Committee, which proposed rules that the Commission sought comment on in 1995. 6 Federal Communications Commission FCC 03- 168 7 those that use hearing aids and others with hearing impairments. 26 In addition, the Commission required telecoil compatibility of all telephones that are required to be hearing aid compatible. 27 Specifically, the Commission required that, except for telephones used with public mobile services, telephones used with private radio services, and secure telephones, every telephone manufactured in the United States (other than for export) or imported for use in the United States must be hearing aid compatible as defined in section 68.316 of the Commission’s rules. 28 Finally, the Commission required all telephones with telecoil compatibility to be labeled with the letters “HAC,” to more readily identify hearing aid- compatible phones to consumers. 29 11. In addition to its rules on technical standards and requirements for compliance, the Commission clarified the status of the HAC Act in light of the adoption by Congress in the intervening years of the Americans with Disabilities Act of 1990 30 and section 255 of the Telecommunications Act of 1996. 31 In the Wireline HAC Order, the Commission determined that the protections afforded individuals with hearing disabilities under the HAC Act provided greater protection than those afforded under the “reasonable accommodation” standard provided by the ADA, and thus as stated in the ADA, the HAC Act was not intended to be invalidated. 32 With regard to section 255 of the 1996 Act, the Commission found that while this section shares a similar goal with the HAC Act, namely access to the telecommunications network by individuals with disabilities, the HAC Act remains binding law by operation of section 601 of the 1996 Act. Section 601 states that the 1996 Act “and amendments made by this Act shall not be construed to modify, impair, or supersede Federal, State, or local laws unless expressly so provided in such Act or amendments.” 33 The Commission concluded that the HAC Act remained unaltered. 34 C. Efforts to Facilitate Wireless Accessibility 12. In 1995, the HEAR- IT NOW Coalition (HEAR- IT NOW) filed a petition in which it argued that a limited revocation of the exemption for digital wireless phones was warranted under the four criteria. 35 HEAR- IT NOW appended to its petition studies demonstrating interference experienced by hearing aid users when attempting to use, or even simply standing near, a Global System for Mobile Communications, or GSM, wireless telephone. 36 HEAR- IT NOW argued that such interference prevents individuals who are hard of hearing from using Personal Communications Service (PCS) devices, thus excluding them from the next phase of the telecommunications revolution. 37 26 See Wireline HAC Order, 11 FCC Rcd 8249, 8279. See also 47 C. F. R. §§ 68. 6, 68. 317. 27 See Wireline HAC Order, 11 FCC Rcd 8249, 8251. 28 See 47 C. F. R. § 68.4. See also 47 C. F. R. § 68. 316. 29 See Wireline HAC Order, 11 FCC Rcd 8249, 8291. See also 47 C. F. R. § 68. 300. 30 Americans with Disabilities Act of 1990, Pub. L. 101- 336, 104 Stat. 328 (1990), codified at 42 U. S. C. §§ 12101- 12213 (ADA). 31 Telecommunications Act of 1996, Pub. L. 104- 104, 110 Stat. 56 (1996) (1996 Act). 32 See Wireline HAC Order, 11 FCC Rcd 8249, 8258- 59. See also 42 U. S. C. § 12201( b). 33 Codified at 47 U. S. C. § 152 nt. Section 601( c) of the 1996 Act, Pub. L. 104- 104, Title VII, § 601, Feb. 8, 1996, 110 Stat. 143, is reproduced in the notes under 47 U. S. C. § 152. 34 See Wireline HAC Order, 11 FCC Rcd 8249, 8259- 60. 35 See HEAR- IT NOW Petition at 5- 8. 36 HEAR- IT NOW Petition at Appendices 1- 4. 37 See HEAR- IT NOW Petition at 5- 6. 7 Federal Communications Commission FCC 03- 168 8 13. In response to the HEAR- IT NOW petition, the Commission established a steering committee and working groups to develop and report to the Commission on possible solutions to problems faced by individuals with hearing disabilities in using digital wireless telephones. That committee, at the direction of the Commission, organized the Hearing Aid Compatibility and Accessibility to Digital Wireless Telecommunications Summit, which convened in January 1996. 38 Summit participants, who included representatives of digital wireless phone manufacturers and other interested parties, later submitted a report to the Commission on the agreements of the parties. 39 14. As detailed in the report, the participants agreed that interface and accessibility problems could only be solved through a combination of both modifications to digital wireless phone designs and improvements in hearing aid immunity to RF emissions. 40 Additionally, the participants recognized that educating individuals with hearing disabilities on the compatibility issues could help foster understanding and encourage access to wireless telecommunications. 41 The participants also recognized that to promote consumer choice, they would need to pursue a range of options, given the range of levels of hearing loss and the range of means to address that loss. 42 Moreover, the participants agreed that further research would be needed to identify objective levels of interference that hearing aid users could tolerate. 43 They also agreed that the results of that further research would then be used to establish a preliminary matrix with recommended performance targets for electromagnetic emission and immunity levels that would serve as an interim benchmark. 44 15. Concurrent with the work of the steering committee, the University of Oklahoma began research into the interaction between hearing aids and digital wireless phones. The study, which tested hearing aids manufactured for eighteen participants with hearing disabilities, sought to determine the levels of interference from digital wireless phones to hearing aids and to relate subjective ratings of speech intelligibility, usability, and annoyance to those interference levels. Results of the study support the use of acoustic measurements of immunity as a basis for a standard. The results also demonstrate the existence of a number of digital wireless phones that can be used successfully with hearing aids. Six of the eighteen hearing aids experienced no interference or only very slight interference at the highest power level when used with both 800 MHz and 1900 MHz digital wireless phones. 45 These results served as the basis for the development and adoption of a voluntary standard by ANSI in April 2001, namely, the “American National Standard for Methods of Measurement between Wireless Communication Devices and Hearing Aids ANSI C63.19- 2001” (ANSI C63.19). 16. ANSI C63.19, which was developed by a Task Group that included representatives of several wireless phone manufacturers, wireless carriers, representatives of the FCC and FDA, and other interested parties, provides guidance on measuring digital wireless phones’ RF emission levels and hearing aids’ immunity levels to the RF emissions, and specifies rating categories for different levels of RF emissions 38 See Wireless Telecommunications Bureau Fiscal Year 1995- 1996 Progress Report, 1996 WL 668142 (Nov. 19, 1996). Invitees to the summit included representatives from the digital wireless phone industry, organizations representing individuals with hearing loss, and hearing aid manufacturers. 39 See Letter from Pamela J. Ransom, Summit Facilitator, to Chairman Reed Hundt, FCC (May 16, 1996) (Summit Agreement). 40 Id. 41 Id. 43 Id. 44 Id. 45 “Investigation of the Interaction Between Wireless Phones and Hearing Aids, Phase III- B: Subjective Validation Study” at 31, University of Oklahoma Center for the Study of Wireless Electromagnetic Compatibility, performed for ANSI C63. 19 (October 1999). 8 Federal Communications Commission FCC 03- 168 9 and immunity. The RF rating categories are intended to assist hearing aid users with the selection of a digital wireless phone that will be usable with a particular hearing aid. In addition, ANSI C63.19 provides guidance on measuring digital wireless phones’ desired and undesired magnetic field emission levels and hearing aids’ immunity to undesired magnetic fields, and specifies rating categories for different levels of magnetic field emissions and immunity. The magnetic field rating categories are intended to assist hearing aid users in choosing a digital wireless phone that can be successfully operated with a particular telecoil- or acoustic coupling- capable hearing aid. 46 17. In October 2000, while the ANSI C63.19 standard was still awaiting final approval, the Wireless Access Coalition (WAC) formally requested that the Commission reopen the petition for rulemaking filed in 1995 by HEAR- IT NOW, seeking to revoke the exemption for PCS devices from the Commission’s rule requiring telephones to be hearing aid compatible. 47 In its petition, WAC noted the qualified success of the steering committee and the working groups to bring about consensus on certain issues and the development of ANSI C63.19. 48 WAC, however, also expressed its disappointment in progress on the “central problem” of digital wireless phones’ interference with hearing aids. 49 WAC reiterated its belief in the need for the Commission to address this central problem quickly, noting that PCS providers continue to offer more feature- rich services at lower prices, as compared to their analog offerings, over their digital PCS networks. 50 If not addressed, WAC is concerned that hearing aid users will find themselves marginalized from mainstream communications, resulting in a regression to more dependent, less productive lives. 51 18. In 2001, responding to both WAC’s formal request and the HAC Act’s requirement that the Commission periodically review the appropriateness of the exemption, the Commission released a Notice of Proposed Rulemaking (Notice) to reexamine the wireless phone exemption provided by the HAC Act. 52 In the Notice, the Commission sought comment on issues related to requirements of the statute for repeal or limiting of the HAC Act exemption. The Commission sought comment on operation of the requirements of the HAC Act as they relate to establishment of technical standards and the meaning of the phrase “internal means.” 53 Additionally, the Commission sought comment on the limitations on compatibility imposed by the statute in requiring that telephones only be compatible with “hearing aids that are designed to be compatible with telephones that meet established technical standards for hearing aid compatibility.” 54 19. The Commission also sought comment on whether the four criteria in the statute, which must be met before the Commission can revoke or limit the wireless phone exemption, have been met. Based on the decline in analog service offerings coupled with the rise in more efficient, lower- cost, and feature-rich digital offerings, the Commission tentatively concluded that limiting the exemption would serve the 46 See ANSI C63.19 at 1- 2. 47 See Petition for Rulemaking of Helping Equalize Access Rights in Telecommunications Now (HEAR- IT NOW), In the Matter of Section 68. 4( a) of the Commission’s Rules, Hearing Aid- Compatible Phones, RM- 8658 (filed June 5, 1995) (HEAR- IT NOW Petition); Request of WAC to Reopen the Petition for Rulemaking, RM- 8658 (filed October 10, 2000) (WAC Request). 48 See WAC Request at 2. 49 Id. at 3. 50 Id. 51 Id. at 4. 53 Notice, 16 FCC Rcd 20558, 20564- 65. 54 Id., 16 FCC Rcd 20558, 20565. 9 Federal Communications Commission FCC 03- 168 10 public interest. 55 The Commission also tentatively concluded that continuation of the exemption without limitation would have an adverse effect on individuals with hearing disabilities. The Commission based its tentative conclusion on the growing prevalence of digital wireless phones and the declining availability of analog phones and service. 56 It further noted that access to applications that are possible through use of a digital wireless phone, such as short messaging service, e- mail, and Internet access would allow the benefits of these features to be experienced by individuals with hearing disabilities. 57 20. Regarding the technological feasibility criterion in the HAC Act, the Commission sought comment on ways in which hearing aid manufacturers, digital wireless phone manufacturers, and service providers could work together to develop long- term solutions to compatibility problems. 58 The Commission also sought comment on whether a “pairing” approach, recommended by CTIA, would satisfy the requirements of the statute. 59 The Commission further sought comment on whether the costs of compliance with the HAC Act would increase costs to such an extent that the digital wireless phones could not be successfully marketed. 60 Finally, the Commission sought comment on the costs and benefits to all telephone users of requiring compliance, 61 as well as whether full revocation of the exemption or a limited exemption was warranted. 62 21. Recognizing the efficiencies that wireless carriers can gain from using digital technology, the Commission’s Analog Sunset Order established a process by which carriers may discontinue providing analog service. 63 In that Order, the Commission found that it was appropriate to eliminate the analog requirement contained in our rules because of the competitive nature of wireless telephony. In addition, the Commission believed that the spectral efficiency that would be gained supported elimination of the analog service requirement. 64 The Commission, however, also recognized that analog service has offered individuals with hearing disabilities access to wireless telephony, and therefore immediate removal of the analog requirement could create access barriers to wireless telephony for individuals with hearing disabilities. 65 It therefore decided to adopt a sunset period of five years to allow carriers to resolve problems associated with access to digital wireless service by individuals with hearing disabilities. To monitor the adequacy of access to wireless telephony, the Commission required certain nationwide wireless carriers to report on the availability and usability of hearing aid- compatible digital devices. 66 55 Id., 16 FCC Rcd 20558, 20567. 56 Id., 16 FCC Rcd 20558, 20568. 57 Id., 16 FCC Rcd 20558, 20568. 59 Id., 16 FCC Rcd 20558, 20569. The pairing approach would test and categorize digital wireless phones and hearing aids based on the phone’s RF emission levels and magnetic field quality, and the hearing aid’s immunity to interference, as specified in the ANSI C63.19 standard. The information could then be used to pair a hearing aid and wireless phone based on their respective ratings. See ANSI C63.19 at 1- 5. 60 Id., 16 FCC Rcd 20558, 20569. 61 Id., 16 FCC Rcd 20558, 20569- 70. 62 Id., 16 FCC Rcd 20558, 20570- 71. 63 See Year 2000 Biennial 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, WT Docket No. 01- 108, Report and Order, 17 FCC Rcd 18401, 18414- 20 (2002) (Analog Sunset Order). 64 Id., 17 FCC Rcd 18401, 18406. 65 Id. 66 Id. 10 Federal Communications Commission FCC 03- 168 11 D. Technical Description of Hearing Aids and Digital Wireless Phones 22. A hearing aid is an electronic device that amplifies weak sounds and transmits them through a small speaker. Hearing aids come in several models, behind- the- ear (BTE), in- the- ear (ITE), in- the- canal (ITC), and completely- in- the- canal (CIC). A hearing aid’s components include a microphone, amplifier, and speaker. Additionally, some models have a coil of wire known as a telecoil or “t- coil.” Hearing aids operate in one of two coupling modes, acoustic or inductive (known as “telecoil mode”), with the latter typically being employed by those with profound hearing loss. As we have noted, approximately 25- 30 percent of hearing aids sold in the United States include telecoils. 67 In acoustic coupling mode, the microphone picks up surrounding sounds, desired and undesired, and converts them into electrical signals. The electrical signals are amplified as needed and then converted back into sound by the hearing aid speaker. In telecoil mode, with the microphone turned off, the telecoil picks up the audio signal- based magnetic field generated by the voice coil of a dynamic speaker in hearing aid- compatible telephones, audio loop systems, or powered neck loops. The hearing aid converts the magnetic field into electrical signals, amplifies them as needed, and converts them back into sound via the speaker. Using a telecoil avoids the feedback that often results from putting a hearing aid up against a telephone earpiece, can help prevent exposure to over amplification, and eliminates background noise, providing improved access to the telephone. 68 23. Cochlear implants bypass the external and middle ears by using electrical stimulation of electrodes implanted in the cochlea to reintroduce the signals carried by auditory nerve fibers to the brain. With a cochlear implant, a microphone in a headpiece worn at the ear is connected via a thin cable to a processor that is worn on the belt, carried in a pocket or, in some models, worn at ear level. The processor translates the signal from the microphone into digital signals that are sent to a transmitter (in some models, the transmitter and microphone are in the same piece). The transmitter, which is held by a magnet on the side of the head behind the ear, sends the coded signals via radio waves through the skin to the cochlear implant. The signals are directed to auditory nerve fibers using an array of electrodes implanted in the deaf patient’s cochlea where they elicit patterns of nerve activity that the brain interprets as sound. 69 Some cochlear implants are now being manufactured with built- in telecoils, which could enable a user to hear more clearly when using a hearing aid- compatible telephone, neck loop, or in the vicinity of an audio loop. 70 24. Individuals with hearing disabilities that use hearing aids or cochlear implants, whether only capable of acoustic coupling or also capable of telecoil coupling, may encounter several problems when using digital wireless telephones. The pulsing nature of RF signals from digital wireless phones can interfere with a hearing aid operated in acoustic or telecoil coupling mode, preventing acceptable use by 67 See “Hearing aids” (visited June 26, 2003) . See also “Telecoils in Hearing Aids in the USA” (visited June 26, 2003) . Some commenters indicate that there may be some hearing aid users who do not utilize the telecoil functionality, even though it is included in their hearing aids. See AAES Comments at 3- 6; CTIA Comments at 9. 68 See supra note 4. See also D. Mulvany, MSW, LCSW, “Choices in Hearing Aids” (visited March 14, 2002) . 69 See Dr. D. K. Eddington and M. L. Pierschalla, “Cochlear Implants Restoring Hearing to the Deaf,” The Harvard Mahoney Neuroscience Institute Letter On The Brain, Fall 1994 Volume 3, Number 4 (visited Feb. 28, 2003) . See also “How a Cochlear Implant Works” (visited June 26, 2003) and P. C. Loizou, “Introduction to cochlear implants” (visited Feb. 28, 2003) . 70 See Center On Disabilities Technology And Persons With Disabilities , “Conference 2003 Conference Proceedings” (visited June 26, 2003) . 11 Federal Communications Commission FCC 03- 168 12 the hearing aid user. This form of electromagnetic interference (EMI), which is produced as a result of pickup and demodulation of the RF field by the hearing aid circuitry, will generate noise in hearing aids if detected during telecoil operation, and may even introduce interference to hearing aids operated in acoustic coupling mode. In addition, whether the hearing aid is being operated in acoustic or telecoil coupling mode, interference from electromagnetic energy emitted as a result of a wireless phone’s display and keyboard backlight operation can cause interference that results in the hearing aid user experiencing distracting and sometimes painful buzzing noises. 71 Even if a wireless phone produces high audio volume or a strong magnetic field for acoustic or telecoil coupling, respectively, the interference described above could be overpowering and prevent the hearing aid user from using the digital wireless phone. 72 25. Changes to hearing aids have been made to increase these devices’ ability to block electromagnetic energy, which is referred to as immunity. Hearing aid manufacturers have focused on hardening the components in the hearing aid, which has resulted in improved immunity to both RF and non- RF sources of interference. 73 In addition, the advances that are being made in digital hearing aids, which often do not experience interference issues, offer an opportunity to help control the interference that users of analog hearing aids may experience. 74 IV. ANALYSIS OF STATUTORY CRITERIA 26. We next set out our analysis of the four criteria Congress provided the Commission to determine whether revocation or limiting of the HAC Act exemption for wireless phones is warranted. In the HAC Act, Congress specifically exempted phones used with public mobile services and phones used with private wireless services from having to be hearing aid compatible. 75 We note, at the outset, that our rules provide that public mobile services are air- to- ground radiotelephone services, cellular radio telecommunications services, offshore radio services, rural radio services, public land mobile telephone services, and other common carrier radio communications services covered by Part 22 of our rules. 76 In 1994, Congress amended section 332 of the Communications Act of 1934, replacing private and public 71 See Vickery Comments at 9, 11. See also University of Oklahoma Wireless EMC Center “Investigation of the Interaction Between CDMA Wireless Phones and Hearing Aids” (visited Jan. 8, 2003) ; H. S. Berger, TEM Consulting, “ANSI C63. 19 Hearing Aid/ Cellular Telephone Compatibility” (visited Feb. 27, 2003) . RF emissions from the antenna of a handset operating with a digital air interface are more likely to produce interference that renders a hearing aid inoperable than those from a handset operating with an analog air interface. The Code Division Multiple Access (CDMA) digital interface provides the lowest levels of interference, with Time Division Multiple Access (TDMA), and TDMA variations such as GSM and Integrated Digital Enhanced Network (iDEN), producing the most interference. See “Preliminary Results SHHH Mobile Phone Survey September 2002” (visited June 17, 2003) . 72 See D. Mulvany and R. Vickery, “An Analysis of Inductive Coupling and Interference Issues in Digital Wireless Phones: Technically Feasible Solutions” (visited June 17, 2003) . 73 See HIA Comments at 4; HIA Feb. 15, 2002, Ex Parte Presentation at 1. 74 See “Power Support” (visited July 2, 2003) http:// www. oticon. com/ eprise/ main/ Oitcon/ com/ SEC_ Professional/ PowerSupprt/ AssistiveListeningDevise/ CNT03_ CellularPhones; “SELF HELP FOR HARD OF HEARING PEOPLE: FAQ Assisted Listening Device” (visited July 2, 2003) . Digital hearing aids, however, can be significantly more expensive than analog hearing aids. See “Buy Hearing Aids” (visited June 26, 2003) . 75 47 U. S. C. § 610( c). 76 47 C. F. R. § 68. 3. Private mobile radio services are private land mobile radio services and other communications services characterized in our rules as private radio services. Id. 12 Federal Communications Commission FCC 03- 168 13 mobile service categories with two new categories of mobile services, commercial mobile radio service (CMRS) and private mobile radio service (PMRS), and treating CMRS providers, which includes PCS and cellular service providers, as common carriers. 77 As we have done in the context of other proceedings, we conclude that the rules we adopt in this Order apply to telephones used with all wireless systems to the extent that they offer real- time, two- way switched voice service that is interconnected with the public switched network, and utilize an in- network switching facility which enables the provider to reuse frequencies and accomplish seamless handoffs of subscriber calls. 78 Therefore, in addition to telephones used with broadband PCS, 79 we apply these rules to telephones used with other public mobile services, including Cellular Radio Telephone Service, 80 as well as Geographic Area Specialized Mobile Radio (SMR) Services and Incumbent Wide Area SMR Licensees in the 800 MHz and 900 MHz bands. 81 27. The legislative history of the HAC Act indicates that Congress provided the exemption to wireless phones because it viewed them as complements, not substitutes, for wireline telephones. 82 Congress authorized the Commission to revoke or limit that exemption upon a finding that: 1) continuation of the exemption would have an adverse effect on hearing impaired individuals; 2) revocation or limiting of the exemption would be in the public interest; 3) compliance with the HAC Act requirements is “technologically feasible;” and 4) compliance would not increase costs of wireless phones to such an extent that they could not be successfully marketed. 28. We conclude that the HAC Act applies to both reduction of RF interference to hearing aids as well as providing inductive coupling capability for the hearing aid’s telecoil. In the legislative history of the HAC Act, Congress stated that the Act does not tie manufacturers to a particular technology and inhibit future development; instead, it sought only to require that telephones be compatible. 83 Congress specifically noted that, in an effort to avoid mandating any particular type of technology, “induction coupling and electromagnetic fields are not even mentioned” in the Act. 84 This legislative history, coupled with the statutory language instructing the Commission to establish such regulations as are necessary to ensure reasonable access to telephone service by individuals with hearing disabilities, 85 compels our conclusion in this Order that both the reduction of RF interference and the provision of inductive coupling for the hearing aid’s telecoil are necessary to ensure wireless phone compatibility with hearing aids. 29. For the reasons set forth below, we find that continuation of the exemption would have an adverse effect on individuals with hearing disabilities. Furthermore, we find that modifying the wireless phone exemption is in the public interest. In addition, we find that it is both technologically feasible to 77 See Implementation of Sections 3( n) and 332 of the Communications Act, Regulatory Treatment of Mobile Services, Second Report and Order, 9 FCC Rcd 1411 (1994). We note that “commercial mobile radio service” is defined as a mobile service that is: “( a)( 1) provided for profit . . . (2) An interconnected service; and (3) Available to the public, or to such classes of eligible users as to be effectively available to a substantial portion of the public; or [the functional equivalent thereof].” See 47 C. F. R. § 20. 3. 78 See 47 C. F. R. § 20. 18( a) (identifying carriers subject to E911 rules); 47 C. F. R. § 52. 21( c) (identifying carriers subject to local number portability rules). 79 Broadband PCS is described in Part 24, Subpart E of our rules, 47 C. F. R. §§ 24. 200- 24. 253. 80 Cellular Radio Telephone Service is described in Part 22, Subpart H of our rules, 47 C. F. R. §§ 22. 900- 22. 967. 81 These services are described in Part 90, Subpart S of our rules, 47 C. F. R. §§ 90. 601- 90.699. 82 See House Report at 8. 83 Id. at 8. 84 Id. at 8. 85 47 U. S. C. § 610( a). 13 Federal Communications Commission FCC 03- 168 14 require compliance in the manner detailed in this Order, and that requiring such compliance will ensure that the digital wireless phones subject to this Order are marketable. 86 And, finally, to the extent the modification of the exemption from the HAC Act for wireless phones facilitates usage by hearing aid users, we expect that individuals with cochlear implants will likewise benefit. A. Adverse Effect on Hearing Impaired Individuals 30. Based on the record in this proceeding, we conclude that continuing the exemption afforded to wireless phones under the HAC Act would have an adverse effect on individuals with hearing disabilities. Consumers who use hearing aids or cochlear implants indicate they have had difficulty finding wireless phones they can use without suffering from annoying and sometimes painful interference, without resorting to expensive and cumbersome external attachments. 87 Consumers state that it is becoming very difficult to find analog wireless phones and services, and they are unable to use most digital wireless phones because of the resulting interference. 88 By not being able to take advantage of most newer, digital wireless phones and services, hearing aid users assert they cannot take advantage of the attractive pricing and service plans available to other consumers, many of which include free or reduced- price phones, because the phones offered do not work with their hearing aids. 89 Some consumers point out that their lack of ability to use a digital wireless phone causes them problems in their employment, particularly since many employers now rely on digital phones and services to stay in contact with employees in the field. 90 A few consumers reported difficulty in finding a phone that works with their hearing aids because they were unable to test the phone before purchasing it. 91 Some consumers expressed a desire to use a wireless phone for emergency use while away from home, but are unable to find one they can use, which they believe puts them at greater risk than non- hearing aid users since they are unable to call 911 or for automotive assistance using a digital wireless phone. 92 31. Consumer advocacy groups assert that the market has not responded to the needs of individuals with hearing disabilities because of the relatively small size of the population of consumers that would benefit from hearing aid compatibility features in digital wireless phones (as compared to the size of the total population of digital wireless phone users). 93 However, these groups also note that the number of Americans with hearing disabilities is growing, and that the market for wireless phones and 86 The HAC Act requires the Commission to determine whether “compliance with the requirements . . . would not increase costs to such an extent that the telephones to which the exemption applies could not be successfully marketed.” 47 U. S. C. § 610( b)( 2)( C)( iv). 87 See AG Bell Comments at 6; SHHH Comments at 6; TDI Comments at 2- 4; Anderson Comments; Angelo Comments; DeVilbiss Comments at 1; Diedrichsen Comments; Harper Comments; Klein Comments; MacKenzie Comments; Taylor Comments at 3; Vickery Comments at 3. See also Letter from Nancy A. Dietrich to Office of the Secretary, FCC, WT Docket No. 01- 309 (May 8, 2002); Letter from Lisa Devlin to Office of the Secretary, FCC, WT Docket No. 01- 309 (March 11, 2002). 88 See SHHH Comments at 6- 7; Consumer Action Network Comments at 2; TDI Comments at 2- 5; Yagi Comments. 89 See AG Bell Comments at 10; Klein Comments; NAD Comments at 1- 2; TDI Comments at 5. 90 AG Bell Comments at 3; Consumer Action Network Comments at 2; NAD Comments at 2; TDI Comments at 5; MacKenzie Comments; McCarley Comments; Waldron Reply Comments at 1; Simmons Comments. 91 AG Bell Comments at 14; Anderson Comments at 1- 2; MacKenzie Comments. 92 See Murphy Comments; Bahl Comments at 2; Mohney Comments; Schultz Comments; Vickery Comments at 5. There are also adverse effects upon the hearing population which flow from the wireless exemption. See Arizona Commission for the Deaf and Hard of Hearing Comments at 3 (describing effects such as businesses’ loss of resources, impacts on families and friends of individuals with hearing disabilities, as well as the need for support services when individuals are communicatively isolated). 93 RERC Comments at 4. 14 Federal Communications Commission FCC 03- 168 15 services would be increased if wireless phone manufacturers would improve access for hearing aid and cochlear implant users. 94 32. Some wireless industry commenters contend that removal of the exemption for wireless phones would not solve the hearing aid compatibility problem because it would not address issues associated with interference. 95 A few commenters argue that the number of people who would benefit from removal of the exemption is relatively small, since such a small percentage of people have telecoils in their hearing aids, and many of them do not even use the telecoil functionality. 96 Because telecoil coupling is typically used by individuals with more severe hearing loss, these are the people who rely upon them the most for telecommunications. Our rules should address the needs of these users since they are the most adversely affected by the exemption, despite the fact that they make up a minority of hearing aid users. In addition, we do not simply remove the exemption for wireless phones and subject these phones to the wireline HAC requirements which, essentially, mandate only telecoil coupling. Our modification of the exemption will benefit people who use their hearing aids for both inductive coupling and acoustic coupling, because our rules will require both reduction of RF interference to hearing aids as well as providing inductive coupling capability for the hearing aid’s telecoil. As a result, our rules could benefit the entire population of hearing aid users, which is estimated to be approximately six million people. 33. We are not persuaded by the other arguments against modifying the exemption. Some commenters claim that the compatibility problem should be solved by only requiring hearing aid manufacturers to increase the immunity of hearing aids. 97 However, this would not address the need for telecoil coupling capability and, while hearing aid immunity has been significantly improved in recent years, it does not appear to be possible to completely shield against all RF interference from digital wireless phones. 98 In addition, contrary to the assertions of some industry commenters, we do not find the security concerns presented by providing telecoil coupling to be significant. 99 Eavesdroppers would need to be within the magnetic field generated by the phone, which is typically about 12 to 18 inches from the handset speaker. 100 34. While we recognize that the wireless industry has made some efforts to address the needs of individuals with hearing disabilities, 101 we believe that maintaining the exemption for wireless phones 94 See AG Bell Comments at 5- 6; SHHH Comments at 7; TDI Comments at 4. 95 CTIA Comments at 3- 8; TIA Comments at 5. 96 See AAES Comments at 3- 6; CTIA Comments at 9; Sprint PCS February 4, 2003, Ex Parte at 5. 97 See Sprint PCS Comments at 11- 14; TIA Comments at 13- 22; Nextel Reply Comments at 4, 7- 8. 98 See HIA Feb. 20, 2003, Ex Parte Presentation at 2- 3; Cochlear Americas Comments at 3. 99 See AAES Comments at 8; Cingular/ Siemens October 23, 2002, Ex Parte Letter at 11. 100 See ANSI C63.19 at 10. See also “Induction Loop Systems” (visited July 7, 2003) and S. C. Ewens, “LIMITS OF INDUCTIVE COUPLING IN HEARING AIDS,” TELEPHONES AND HEARING AIDS PROCEEDINGS OF COST 219 SEMINAR, The Hague, 17 th of March 1993, Commission of the European Communities Information Technologies and Sciences, “telecommunications and disability,” Edited by Patrick R. W. Rowe (visited June 26, 2003) . 101 Representatives of the wireless industry participated in the ANSI C63. 19 Task Group which developed the standard. See ANSI C63. 19 at iii- iv (participants included Ericsson, Motorola, Nokia, Pacific Bell Mobile Services, Qualcomm, and Siemens). In addition, several wireless handset manufacturers state that they have begun testing under ANSI C63.19, and some have made efforts to produce lighter, less cumbersome accessories. For example, Nokia reports that it has updated its neck loop for inductive coupling to eliminate the need for separate batteries. CTIA has established an Internet web site, which is available at , to provide information on wireless phones that provide hearing aid compatibility characteristics. See CTIA June 13, 2003, Ex Parte at 1- 2. 15 Federal Communications Commission FCC 03- 168 16 from the HAC Act would adversely affect hearing aid users. In light of the migration of consumers to more efficient, feature- rich, and lower- cost digital wireless phones and services, we believe that maintaining the exemption for wireless phones would prevent hearing aid users from taking advantage of these devices and services. In addition, the market transition from analog to digital services, recognized by the Commission’s decision to sunset the analog service requirements imposed on wireless carriers, could restrict the choices for telecommunications services that are available to individuals with hearing disabilities, unless the HAC Act’s exemption for wireless phones is modified or eliminated. 102 These constitute adverse effects that would be caused by continuing the wireless phone exemption from the HAC Act. B. Public Interest 35. Based on the record in this proceeding, and in light of the adverse effects of continuing the exemption described above, we conclude that the public interest is served by modifying the exemption afforded wireless phones under the HAC Act. As commenters to this proceeding have affirmed, greater access to digital wireless service for individuals with hearing disabilities will enable them to benefit from this technology, which has influenced Americans’ work and social lives, and that benefit will inure to all consumers of telecommunications. 103 In other orders, the Commission has recognized such benefits. For example, in its Order implementing section 255 of the Telecommunications Act, the Commission stated that ensuring greater access to a particular group of telecommunications consumers creates benefits that flow to all consumers of telecommunications services. 104 Moreover, it is important to preserve access to wireless telecommunications for individuals with hearing disabilities, particularly in view of the public safety benefits offered by these services. Over the last 10 years, there has been more than a 10- fold increase in the number of wireless 911 calls, and this trend is likely to continue. 105 As the general public increasingly relies on wireless phones to obtain emergency services, individuals with hearing disabilities should also be able to take advantage of the safety benefits of wireless services by having access to digital wireless phones that work effectively with hearing aids. 36. The rise in use of digital wireless service is well documented. As the Commission noted in the Eighth Competition Report, digital technology is now dominant in the wireless telephone sector, with approximately 125 million subscribers, far surpassing the 17 million analog subscribers. 106 Digital wireless technologies enable wireless service providers to more efficiently use their spectrum, which in turn allows them to offer their customers relatively inexpensive bundles of minutes, more enhanced services, such as text messaging, and wireless data and mobile Internet offerings. 107 These offerings have allowed wireless telecommunications to evolve from what was once considered a complementary business service to a mass market consumer offering that delivers an essential service, telecommunications, through a platform that offers users the benefits of mobility and greater independence. Wireless services also offer users greater access to emergency services. As evidenced by the continued growth in the number of wireless subscribers, consumers are realizing these benefits, often 102 See Analog Sunset Order, 17 FCC Rcd 18401, 18417. 103 AT& T Wireless Comments at 3; AG Bell Comments at 4; Consumer Action Network Comments at 2. 104 Implementation of Sections 255 and 251( a)( 2) of the Communications Act of 1934, As Enacted by the Telecommunications Act of 1996: Access to Telecommunications Service, Telecommunications Equipment and Customer Premise Equipment by Persons With Disabilities, WT Docket No. 96- 198, Report and Order and Further Notice of Inquiry, 16 FCC Rcd 6417, 6420 (1999) (Section 255 Order). 105 NENA Wireless 9- 1- 1 Overview, see supra note 13. 106 See supra note 11, Eighth Competition Report at section II. C. 1. b.( i). 107 See supra note 12, Seventh Competition Report, 17 FCC Rcd 12985, 13009. 16 Federal Communications Commission FCC 03- 168 17 considering their wireless phone to be their primary phone. 108 For these reasons, access to digital wireless service for the country’s approximately six million hearing aid users is necessary to facilitate their full participation in our society, and we therefore conclude that it is in the public interest that the exemption afforded to wireless phones under the HAC Act be modified. As the Commission has recognized in other proceedings, increasing the number of people connected to the telecommunications network makes the network more valuable to all of its users. 109 37. In addition to the benefits to hearing aid wearers that will accrue from modifying the exemption for wireless phones, we believe increased accessibility to digital wireless telecommunications will result in benefits for all consumers. Even people who do not wear hearing aids would benefit from the spectrum usage efficiencies realized by the increased use of digital wireless phones rather than the continued use of analog wireless phones. 110 Also, measures to redirect RF energy could extend phone battery life for all users. 111 In addition, the wireless industry would benefit from the business opportunity in serving the expanding market segment comprised of individuals with hearing disabilities, and employers of individuals with disabilities would benefit from improved communication with employees in the field. We also anticipate that, based on similarities between the experiences of cochlear implant users and hearing aid users when using digital wireless phones, 112 any handset changes that are made as a result of modifying the exemption will likewise benefit cochlear implant users. 113 In sum, the public interest would be served by modifying the HAC Act’s wireless phone exemption. C. Technological Feasibility 38. Based on the record in this proceeding, we also find that it is technologically feasible for digital wireless phones to comply with the requirement that they be hearing aid compatible. Below, we describe some of the technological aspects involved in achieving compatibility between digital wireless phones and hearing aids, and we detail the various parts of the technological feasibility criterion to establish such a requirement. 39. ANSI C63.19 Technical Standard. Fundamental to deciding to modify the exemption on grounds of technological feasibility is the requirement that there be an established technical standard. 114 As discussed above, since 1996, the Commission, in conjunction with various industry participants and consumers, has been working to establish a technical standard that would allow digital wireless phones to work properly with hearing aids. One product of the HAC Summit of 1996 was the establishment of a technical working group, which led to the formation by ANSI C63 of Task Group C63.19. 115 ANSI C63 charged the Task Group with developing a standard for methods of measurement and defining the limits 108 See supra note 10, Seventh Competition Report, 17 FCC Rcd 12985, 13017 (citing a poll that indicates one in five wireless telephony users considers their wireless phone to be their primary phone). 109 See Federal- State Joint Board on Universal Service, Report and Order, 12 FCC Rcd 8776, 8783 (1997) (“ Increasing subscriber ship also benefits society in ways unrelated to the value of the network per se. For example, all of us benefit from the widespread availability of basic public safety services, such as 911.”). 110 See Analog Sunset Order, 17 FCC Rcd 18401, 18406. 111 See F. M. Caimi, Ph. D., Senior Scientist, "MLA Antennas - Physically Small, Electrically Large" (visited March 5, 2003) . 112 See Cochlear Americas May 16, 2003, Ex Parte at 2. 113 Cochlear implant manufacturers indicate that they are beginning to incorporate telecoils into newer cochlear implant models. See Cochlear Americas May 16, 2003, Ex Parte at 2. As a result, cochlear implant users will benefit from telecoil coupling capability as well as reduced RF emissions from digital wireless handsets. 114 See 47 U. S. C. § 610( b)( 1)( B). 115 ANSI C63 is the Accredited Standards Committee on Electromagnetic Compatibility. 17 Federal Communications Commission FCC 03- 168 18 for hearing aid compatibility and accessibility to wireless telecommunications. 116 Task Group C63.19, which included wireless carriers, digital wireless handset manufacturers, and hearing aid manufacturers, as well as representatives from the FCC and Food and Drug Administration (FDA), prepared and adopted by an almost unanimous vote 117 a standard that is predictive of the successful use of digital wireless phones with hearing aids. 118 40. To use a digital wireless phone with a hearing aid or cochlear implant in acoustic coupling mode, RF interference and other EMI from the wireless phone must be controlled. Based on recommended audio signal- to- interference ratios and other assumptions about wireless phones' performance, ANSI C63.19 specifies ratings for digital wireless phones, U1 through U4, based on their RF emission levels, with U1 being the highest emissions and U4 the lowest emissions. The standard also provides a methodology for rating hearing aids from U1 to U4 based on their immunity to interference, with U1 being the least immune and U4 the most immune. To determine whether a particular digital wireless phone will not interfere with a particular hearing aid, the immunity rating of the hearing aid is added to the emissions rating of the wireless phone. A sum of 4 would indicate that the wireless phone is usable; a sum of 5 would indicate that the wireless phone would provide normal use; and a sum of 6 or greater would indicate that the wireless phone would provide excellent performance with that hearing aid. 119 41. Reduced RF emissions are also needed to improve inductive coupling with hearing aid or cochlear implant telecoils. In addition, to use a wireless phone with a hearing aid or cochlear implant in telecoil coupling mode, without employing an accessory device (e. g., a neck loop), the voice coil of the wireless phone’s speaker or a separately installed coil must generate an audio signal- based magnetic field of sufficient intensity and frequency response for reception by the telecoil and conversion into sound by the hearing aid speaker or into digital signals by the cochlear implant processor. If the magnetic field’s intensity is too low, a hearing aid user may attempt to compensate by increasing the sensitivity of the telecoil. But this could introduce interference from undesired electromagnetic fields not previously detected, such as from operation of the wireless phone’s display and keyboard backlight. 120 42. The ANSI standard specifies the axial field and radial field intensity of the audio signal's magnetic field required for satisfactory operation of digital wireless phones with hearing aids in telecoil mode. The standard also specifies ratings for the magnetic field quality of digital wireless phones as well as the immunity of hearing aids to undesired magnetic fields, U1T through U4T. 121 To determine whether a particular digital wireless phone will function with a particular hearing aid in telecoil mode, the immunity rating of the hearing aid is added to the magnetic field rating of the wireless phone. A sum of 4 would indicate that the wireless phone is usable; a sum of 5 would indicate that the wireless phone would provide normal use; and a sum of 6 or greater would indicate that the wireless phone would provide excellent performance with that hearing aid in telecoil mode. 122 43. ANSI C63.19 is a detailed standard that is highly predictive of the usability of compatible wireless phones with sufficiently immune hearing aids, a point which the Telecommunications Access 116 See ANSI C63.19 at iii. 117 HIA Ex Parte, filed Mar. 26, 2003 (indicating that HIA voted against ANSI C63.19, but expressing support for its application in today’s manufacturing environment). 118 See ANSI C63.19 at 1- 2. 119 See ANSI C63.19 at 38- 39. 120 See supra note 72. 121 See ANSI C63.19 at 40. 122 See ANSI C63.19 at 39. 18 Federal Communications Commission FCC 03- 168 19 Advisory Committee to the United States Architectural and Transportation Barriers Compliance Board makes in declaring ANSI C63.19 to be a success. 123 Even though the Commission expressed the view in the Notice that ANSI C63.19 did not appear to constitute an established technical standard within the meaning of the HAC Act, 124 through comments submitted on the record by ANSI ASC C63 SC8 and other information gathered during the course of this proceeding, we now believe the standard does constitute a workable technical standard to produce digital wireless phones that can be used effectively with hearing aids. 125 ANSI C63.19 was made publicly available shortly before the adoption of the Notice, and Commission staff had a limited time within which to evaluate its applicability and usefulness for purposes of determining whether it was a standard that would be technologically feasible for digital wireless phones to meet. We have since had a more thorough opportunity to evaluate the standard and to obtain additional information from persons involved with the standard’s development and initial testing, and it appears to be a workable technical standard for purposes of lifting the exemption for digital wireless phones. 126 We, therefore, find that the ANSI C63.19 standard for digital wireless phone compatibility with hearing aids is an established technical standard, as required by the HAC Act. 44. Feasibility of Meeting the ANSI Standard. In addition to requiring an established standard, the technological feasibility criterion of the HAC Act requires that wireless phones be capable of meeting that standard. In the record, manufacturers, including Motorola and Nokia, confirm that certain of their digital wireless phones across four air interfaces currently meet the U3 or higher rating required under the ANSI C63.19 standard for good performance with compliant hearing aids. 127 Because shielding can reduce the RF energy directed toward a user, such techniques have the potential to permit wireless phones to achieve the U3 or higher rating, and thus reduce the interference to hearing aids. 128 Contrary to Sprint PCS’s assertion that reducing EMI from wireless phones will significantly reduce industrial design options, 129 there are a number of steps manufacturers might take to reduce EMI without significantly affecting handset designs. For example, printed circuit board shielding and shunt traces can effectively reduce EMI- causing emissions from printed circuit boards. 130 Also, cell phone enclosure shielding has evolved from plated metal, to plated plastic, to today’s robotically- painted and EMI- gasketed parts, which can significantly reduce EMI. 131 As Sprint PCS states, some metals used for shielding, such as copper, 123 See ANSI ASC C63 SC8 Comments at 16 (stating that tests indicate the standard is 96 percent predictive of usability). 124 Notice, 16 FCC Rcd 20558, 20560. 125 See generally ANSI ASC C63 SC8 Comments; AAES Comments at 9- 10. 126 See ANSI ASC C63 SC8 March 21, 2003, Ex Parte Letter at 2- 3; Motorola May 5, 2003, Ex Parte Letter at 1; Nokia July 1, 2003, Ex Parte Presentation at 8. 127 These air interfaces include CDMA, GSM, iDEN, and TDMA. See Motorola January 31, 2003, Ex Parte at 16, and Nokia July 3, 2003, Ex Parte Letter. 128 See Vickery Comments at 7- 10; L. Kozma- Spytek, M. A. Research Audiologist, Gallaudet University Technology Access Program, Washington, D. C., “Digital Wireless Telephones and Hearing Aids” (visited June 17, 2003) . 129 See Sprint Feb. 4, 2003, Ex Parte Presentation at 4. 130 The use of shunt traces, which are alternative paths for interfering currents, is reportedly one of the most effective means for reducing emissions from printed circuit boards. See S. A. Bokhari, “Analysis of the effect of Shunt Traces on the Radiation from Printed Circuit Boards,” Proceedings of the 1998 IEEE International Symposium on Electromagnetic Compatibility, Vol. 1, July 1998, at 621. 131 See N. Quesnel, “Optimizing EMI Shielding for Wireless Systems” (visited Feb. 25, 2003) . Ericsson has developed a shield for its model T10s wireless phone that reduces the specific absorbed radiation by approximately 87 percent, while actually increasing the relative radio frequency power transmitted by approximately 45 percent. See M. I. Manning and M. Densley, “SARTest Report 0113 June 2001 On the Effectiveness of Various Types of (continued....) 19 Federal Communications Commission FCC 03- 168 20 readily oxidize upon exposure to the environment. 132 However, techniques have been developed to prevent such metals from oxidizing. 133 Sprint PCS also notes that a capacitor intended to filter audio signal EMI would also reduce the gain of the audio signal. 134 We agree, because if the frequency of the undesired signal is at or near that of the desired signal, a filter designed to attenuate the undesired signal will also attenuate the desired signal. 135 Techniques other than filtering could be used to eliminate audio signal EMI. 136 45. Although direct current (DC) wireless phone batteries do not typically produce EMI, 137 alternating current (AC) elsewhere in the phone, such as for the RF amplifier, the keypad light, and the display screen light can generate EMI to hearing aids. Techniques to mitigate such interference include passive inductive cancellation, 138 as well as the shielding techniques previously discussed. Also, several mobile phone manufacturers, including Kyocera, LG, Samsung, and Sanyo, are currently producing wireless phones with a programmable backlight setting that allow a user to select how long the display screen and keypad remain backlit after any key press is made. 139 As more manufacturers follow suit, then this source of interference to hearing aids users will be eliminated because consumers will be able to turn off or otherwise control the backlight. 46. In addition, we note that some wireless carriers are considering the use of directional antennas to improve network performance, 140 and that these antennas may also reduce the RF interference (... continued from previous page) Mobile Phone Radiation Shields” prepared for the United Kingdom Department of Trade and Industry (visited Feb. 25, 2003) at 7. 132 See Sprint February 4, 2003, Ex Parte at 5. 133 Typically, a nickel coating is applied over the copper, or other susceptible metal, to protect it from environmental exposure. See B. C. Jackson and G. Shawhan, “Current Review of the Performance Characteristics of Conductive Coatings for EMI Control,” Proceedings of the 1998 IEEE International Symposium on Electromagnetic Compatibility, Vol. 1, July 1998, at 568. 134 See Sprint February 4, 2003, Ex Parte at 5. Capacitor filters have gain that is dependent on signal frequency. 135 See K. Lacanette, “A Basic Introduction to Filters – Active, Passive, and Switched- Capacitor,” National Semiconductor Corporation Application Note 779, April 1991 (visited March 11, 2003) . 136 See T. Raper and S. Knauber, “Designing for Electromagnetic Interference (EMI) Compliance,” March 1999 (visited June 26, 2003) . 137 See Sprint PCS February 4, 2003, Ex Parte at 5. 138 Inductive field cancellation is accomplished by configuring conductors in such a way so the positive field generated by one conductor is nearly cancelled by the negative field produced by the other conductor. See Ex Parte Letter from George DeVilbiss to Edmond Thomas, WT Docket No. 01- 309 (filed February 26, 2003). See also P. Giddings, PE, “Getting a Perspective on Noise in Audio Systems” (visited June 26, 2003) . 139 See Sprint February 4, 2003, Ex Parte Letter at 5. See also Samsung March 3, 2003, Ex Parte Letter at 1. 140 Some carriers are considering deploying directional phone and base stations antennas in so- called “diversity schemes” in order to improve wireless system performance and reduce the number of base stations needed. See D. McDonough, Jr., “Building a Better Wireless Antenna,” Wireless News Factor, June 5, 2002 (visited March 5, 2003) . See also C. Beckman, “Development Trends in Antennas for Mobile Phones,” Portable 2001 Conference, February 13- 15, 2001, San Jose, CA (visited Feb. 19. 2003) ; J. H. Winters, “Smart Antennas for Wireless Systems,” IEEE Personal Communications, February 1998 at 23- 27; F. Viquez, “Smart Antenna Deployment in Next- Generation Wireless Systems” (visited Feb. 19, 2003) . 20 Federal Communications Commission FCC 03- 168 21 experienced by some hearing aid users. A few vendors are currently working to develop accessory directional antennas that connect to the hands- free antenna port on the back of some handset models, and which are designed to reduce the level of RF emissions directed toward the hearing aid. 141 Some commenters claim that directional antennas could significantly impact wireless networks’ performance by affecting initial call connection attempts and later handoffs, potentially requiring considerable changes to networks’ configurations and operation. 142 Contrary to these assertions, however, directional antennas have the potential to help mitigate the effects of multipath, improve frequency bandwidth performance, achieve higher gain, and provide better directional control over emissions. 143 Although handsets that employ directional antennas may need to be slightly reoriented when used in certain locations, techniques such as antenna diversity are being considered to combat large- scale fading effects caused by shadowing from large obstacles (e. g., buildings or other terrain features). 144 Because such antennas have the potential to significantly reduce the RF interference to hearing aids, as well as provide efficiency benefits both to the wireless network and to battery life, there are several benefits that could be gained from their increased use in handsets. 47. We note that some commenters claim that the Commission’s rules appear to prohibit the use of directional wireless phone antennas. 145 Section 24.232( b) limits the power for broadband PCS mobile stations to 2 watts peak Effective Isotropic Radiated Power (EIRP), and the equipment must employ means to limit the power to a minimum necessary for successful communications. 146 A directional antenna manufacturer, Myers Johnson, Inc. (MJI), has filed a petition for revision of this rule. MJI believes that the rule, as it is written, prohibits the use of directional antennas. 147 We disagree. The EIRP requirement does not in any way prohibit employing wireless phone directional antennas. We do not interpret the rule to require antennas to radiate only in an isotropic pattern. Instead, section 24.232 only establishes the maximum power that can be transmitted from wireless phones. As a result, we deny Myers Johnson’s petition to modify section 24.232. 48. In addition to employing techniques to reduce interference caused by digital wireless phones to hearing aids, we also believe it is technologically feasible for digital wireless phones to be made capable of inductive coupling with the hearing aid’s telecoil (i. e, to meet a U3T rating). Nokia indicates that initial testing demonstrates that some of its phones meet the U2T to U4T magnetic field quality rating. 148 Although some wireless industry parties contend that a new standard for inductive coupling 141 See Myers Johnson Petition at 3; Damax Oct. 21, 2002, Ex Parte at 1- 2. 142 See CTIA Comments at 23; Sprint Feb. 4, 2003, Ex Parte Presentation at 5. 143 See note 140, supra. 144 See A. J. Paulraj, D. Gesbert, C. Papadias, "Smart Antennas for Mobile Communications," Paulraj, Gesbert, Papadias Encyclopedia for Electrical Engineering, John Wiley Publishing Co., 2000 (visited March 5, 2003) . 145 See Cingular/ Siemens January 22, 2003, Ex Parte at 5. In addition, stating its belief that the section 24. 232 of our rules restricts the use of directional antennas in wireless phones, Myers Johnson, Inc., has petitioned the Commission to amend section 24. 232 of our rules to limit the power supplied to the antenna to 32 dBm (1. 584 Watts), and to require the equipment to employ the means to limit the power to the minimum necessary for successful communications. See Myers Johnson Petition at 1- 4 (filed Jan. 27, 2003). 146 See 47 C. F. R. § 24. 232( b). 147 See Myers Johnson Petition at 1- 4. 148 Nokia July 1, 2003, Ex Parte at 8. See also Nokia July 3, 2003, Ex Parte Letter (confirming that some of its phones meet the U3 and U3T criteria). 21 Federal Communications Commission FCC 03- 168 22 needs to be developed, 149 the ANSI C63.19 standard recommends specific magnetic intensity levels and signal plus noise- to- noise ratios (i. e., quality levels) for successful inductive coupling with hearing aids. 150 The magnetic field specified in ANSI C63.19 can be provided by internal means via the voice coil of a wireless phone’s dynamic speaker. 151 Alternatively, to increase durability and battery life and to decrease component weight, a wireless phone manufacturer may elect to incorporate an induction coil in addition to a non- inductive speaker assembly, such as a piezoelectric speaker, to provide the required magnetic field. ANSI C63.19 recommends that the location of the additional coil should be near but not necessarily centered on the speaker opening. 152 We note that some Samsung digital wireless phone models have designs which approximate the section 68.316 requirements for wireline hearing aid compatibility, and this appears to promote telecoil coupling capability. 153 In addition, consumers have reported finding some digital wireless phones that provide adequate telecoil coupling capability. 154 We also note that Audex Inc. has developed an external device which, when used with a digital wireless phone, generates a magnetic field that is sufficient to provide telecoil coupling capability. 155 This device is currently employed as an external attachment to certain handsets, fitting between the phone’s body and the battery. 156 Alternatively, its functionality could be incorporated into a wireless handset itself. 157 49. Because we believe that the U3 and U3T performance levels for normal use specified in ANSI C63.19 constitute an established standard which digital wireless phones currently available on the market meet, we conclude that it is technologically feasible for certain digital wireless phones to be made hearing aid compatible. The record evidence indicating that digital wireless phones can meet the U3 and U3T performance levels in the ANSI C63.19 standard is sufficient evidence to establish the requirement that such phones be capable of meeting the established technical standard. We recognize that, as the industry engages in testing and design work geared to comply with the U3 and U3T performance levels, the standard may need to be revisited. In addition, alternative approaches to the problem of providing greater wireless accessibility for hearing aid users should be explored. We encourage these steps as part of an evolutionary process that will ultimately lead to increased wireless communications accessibility for individuals with hearing disabilities. 149 See Letter from Diane Cornell, CTIA, to Marlene Dortch, FCC, WT Docket No. 01- 309 at 2- 3 (June 13, 2003) (CTIA June 13, 2003, Ex Parte Letter); Cingular May 16, 2003, Ex Parte Letter at 2; Motorola May 5, 2003, Ex Parte Letter at 1; Sprint July 3, 2003, Ex Parte Letter at 1. 150 See ANSI C63.19 at 40- 42. 151 See CTIA Comments at 5; Motorola Comments at 4; Sprint PCS Comments at 28. See also “Motorola Products and Services Features” (visited May 6, 2003) . 152 See ANSI C63.19 at 35. 153 See Ex Parte Letter from Muzibul H. Khan, Samsung, in WT Docket No. 01- 309 (March 3, 2003). 154 See SHHH September 12, 2002, Ex Parte Presentation, Preliminary Results of SHHH Mobile Phone Survey at 2 and Comments on Accessories from Survey Respondents at 1; Dana Mulvany Reply Comments at 1; Letter from Susan Matt to Washington State SHHH Members (visited June 17, 2003) . 155 See Audex Aug. 2, 2002, Ex Parte Letter at 1. 156 The Audex CHAAMP accessory is currently designed to work with Nokia handsets. See Audex Aug. 2, 2002, Ex Parte at 1. 157 See Audex Aug. 2, 2002, Ex Parte at 1. 22 Federal Communications Commission FCC 03- 168 23 D. Marketability 50. In order to modify the exemption contained in the HAC Act for wireless phones, the Commission must also find that compliance “would not increase costs to such an extent that the telephones… could not be successfully marketed.” 158 Based on the record in this proceeding, we further find that it is possible for digital wireless phones to comply with the hearing aid compatibility requirement and that such a requirement would not increase the costs of such phones to such an extent that they could not be successfully marketed. 51. There is evidence on the record that supports a finding that compliance with U3 and U3T performance levels of the ANSI C63.19 standard is not only technologically feasible, but that such compliance can be achieved in competitively- priced digital wireless phones. As stated above, a number of manufacturers have asserted in this proceeding that they currently offer customers digital wireless phones that meet the U3 performance level of the ANSI C63.19 standard. 159 These entities manufacture digital wireless phones over all air interfaces and these digital wireless phones incorporate a variety of features. Also, manufacturers are producing digital wireless phones that approximate the magnetic field intensity for wireline telephones specified in section 68.316 of our rules. 160 While the U3T performance level goes beyond the wireline standards contained in our rules, we do not believe that digital wireless phones that meet the U3T performance level would be too costly to market. As we discussed above, modifications to the handset could yield the necessary magnetic field for inductive coupling, and it does not appear that such modifications will cause significant research and development or production costs. 161 52. In addition, as the number of hearing aid and cochlear implant users continues to increase over the next several years, 162 we expect that demand for hearing aid- compliant handsets also will increase. This increased demand should drive down the costs of production for hearing aid- compliant phones. Moreover, to the extent manufacturers incorporate hearing aid compatible functionality into greater numbers of digital wireless handsets, this should also drive down the cost per unit and increase the likelihood that these phones could be successfully marketed. Based on this evidence, we conclude that the “marketability” criterion for modifying the exemption is met. 163 V. REQUIREMENTS FOR HEARING AID COMPATIBILITY OF WIRELESS PHONES 53. In this Section, we detail the requirements that we adopt in this Order and provide a timeframe for implementation of those requirements. We adopt certain performance levels set forth in ANSI C63.19 as a technical standard to govern digital wireless phone compatibility with hearing aids. Within two years, we require each digital wireless phone manufacturer to make available to carriers and require each carrier providing digital wireless services to make available to consumers at least two handset models for each air interface it offers 164 which provide reduced RF emissions (“ U3” rating) to 158 47 U. S. C. § 610( b)( 2)( C)( iv). 159 See supra note 127; Motorola Jan. 21, 2003, Ex Parte Presentation at 14; Nokia July 3, 2003, Ex Parte Letter. 160 See Samsung March 3, 2003, Ex Parte; 47 C. F. R. § 68. 316. 161 See supra para. 48. 162 See SHHH Comments at 2 (number of individuals with hearing loss is increasing as a result of noise exposure and aging of society); Cochlear Americas May 16, 2003, Ex Parte at 1 (number of individuals who are candidates for cochlear implantation is growing by approximately 20 percent each year). 163 See paras. 78- 79, infra (discussing costs and benefits of our actions as required by HAC Act, 47 U. S. C. §610( e)). 164 Under our requirements, digital wireless service providers are required to offer consumers at least two compliant phone models for each air interface they offer, but not necessarily two for every manufacturer they carry. 23 Federal Communications Commission FCC 03- 168 24 enable acoustic coupling. 165 Also within two years, we require each Tier I wireless carrier providing digital wireless services to make available to consumers at least two handset models for each air interface it offers to provide reduced RF emissions (“ U3” rating) or 25 percent of the total number of phone models it offers, whichever is greater. Within three years, we require each digital wireless phone manufacturer to make available to carriers and require each carrier providing digital wireless services to make available to consumers at least two handset models for each air interface it offers which provide telecoil, or inductive, coupling (“ U3T” rating). We adopt a de minimis exception to these requirements for certain digital wireless phone manufacturers and carriers. 54. To enhance consumer choice, we encourage digital wireless phone manufacturers and service providers to offer at least one compliant handset that is a lower- priced model and one that has higher- end features. By February 18, 2008, the date on which wireless carriers may discontinue providing analog service in accordance with the Analog Sunset Order, 166 we require 50 percent of all digital wireless phone models offered by a manufacturer or carrier to be compliant with the reduced RF emissions requirements. Additionally, we require manufacturers to label the handsets accordingly, and we require carriers to make available the performance rating of the compliant handsets. We require wireless carriers and digital wireless handset manufacturers to report semiannually (every six months) on efforts toward compliance during the first three years, then annually thereafter through the fifth year of implementation. We commit the Commission staff to deliver a report to the Commission shortly after three years from the effective date of this Order so we can examine the impact of these requirements. This report will form the basis for the Commission to initiate a proceeding soon after the report is issued to evaluate whether to increase or decrease the 2008 requirement to provide 50 percent of phone models, whether to adopt implementation benchmarks beyond 2008, and whether to otherwise modify the implementation requirements. We encourage hearing aid manufacturers to label their pre- customization products according to the ANSI standard. And, finally, we encourage phone manufacturers and service providers to engage in outreach efforts intended to educate the public, audiologists, hearing aid dispensers, and retail personnel concerning using digital wireless phones with hearing aids. These actions are described in greater detail below. A. Adoption of ANSI C63.19 Performance Levels as the Applicable Technical Standard 55. As discussed above in Section IV. C, the ANSI C63.19 standard is the most relevant technical standard currently available for measuring whether a particular digital wireless phone is likely to work with a hearing aid with particular characteristics. This standard was developed by representatives of a number of interested parties, including wireless carriers, digital wireless phone manufacturers, and hearing aid manufacturers, as well as by representatives from the FCC and FDA. While we recognize that some parties have asserted that ANSI C63.19 is not a perfect tool for ensuring that any given hearing aid will work with a particular digital wireless phone, 167 we believe the standard presents a workable approach to measuring levels of interference digital wireless handsets cause to hearing aids, as well as for measuring the immunity of hearing aids. In addition, ANSI C63.19 sets forth obtainable performance characteristics for wireless phones and provides a reasonable methodology for predicting the likelihood that two devices will work together. 165 See supra at para. 22 (explaining that acoustic coupling involves all sounds being received by the hearing aid’s microphone, being converted to electrical signals and amplified as needed, and then being converted back into sound through the hearing aid’s speaker). 166 Analog Sunset Order, 17 FCC Rcd 18401, 18419. See para. 21, supra (describing process by which carriers may discontinue providing analog service). 167 See Sprint PCS Comments at 14- 16; Sony Ericsson March 13, 2003, Ex Parte Presentation at 4; Nokia April 10, 2003, Ex Parte Presentation at 9; Samsung Telecommunications America March 21, 2003, Ex Parte, Letter at 2. 24 Federal Communications Commission FCC 03- 168 25 56. As discussed above, a digital wireless handset which meets a U3 rating for reduced RF interference and a U3T rating for telecoil coupling would likely result in normal performance with a U2- rated hearing aid and in excellent performance for a person using a U3- rated hearing aid. 168 Hearing aid manufacturers indicate that the majority of hearing aids being produced today are capable of meeting an immunity level that would result in good performance with a digital wireless phone meeting the U3 or U3T requirements under the ANSI standard. As a result, we find that a requirement that handsets meet a U3 and U3T rating under ANSI C63.19 will facilitate successful combinations of hearing aids and digital wireless phones, and should be mandated. The record indicates that there are some digital wireless handsets presently on the market that meet the U3 level, and while further testing is necessary, it appears that there are some handsets which produce a sufficient electromagnetic field to permit telecoil coupling with hearing aids. 169 This may mean that these handsets either already do meet the U3T rating under ANSI C63.19, or that they could feasibly meet that rating with some minor modifications. 57. Some wireless phone manufacturers have questioned whether handset compliance with ANSI C63.19 will ensure a successful consumer experience in all cases, particularly since we are not imposing immunity requirements on hearing aid manufacturers. 170 HIA has expressed concern regarding the labeling of hearing aids, particularly since they are highly customized for each person’s physiology and individual hearing loss and it is difficult to predict whether a particular hearing aid will provide the same level of immunity for every user. 171 Nonetheless, by requiring digital wireless phones to provide a reduced level of RF emissions and to provide telecoil coupling capability as described in this Order, we believe that a greater number of hearing aid and cochlear implant users will be able to find digital wireless phones that will work for them. Also, it appears that, by meeting the ANSI C63.19 performance standards, compliant digital wireless phones will have improved audio quality. As a result, we do not need to impose rules concerning volume control of wireless phones like those governing wireline phones. 58. Hearing aid manufacturers have increased the immunity of hearing aids in recent years, and they state that, if a digital wireless handset meets the U3 or U3T or better rating under ANSI C63.19, “HIA member companies can identify hearing aids that have been designed to meet higher immunity levels as compatible with digital handsets that meet [the U3 and U3T requirements.] Further, HIA members, as a policy, will continue to provide at least a 30- day trial period on hearing aids respective companies consider to be compatible and offer a full refund should the hearing aid not meet the customer’s expectations.” 172 HIA has committed that, in the event we adopt such performance requirements for digital wireless phones, its members would allow the user a 30- day trial period, and the manufacturer would take the hearing aid back for a full refund “if it cannot be adjusted, re- manufactured, or replaced to satisfy the needs of the user.” 173 168 ANSI C63.19 at Section 7. 2, Table 1 (p. 39). 169 See SHHH September 12, 2002, Ex Parte Presentation, Preliminary Results of SHHH Mobile Phone Survey at 2 and Comments on Accessories from Survey Respondents at 1; Dana Mulvany Reply Comments at 1; Letter from Susan Matt to Washington State SHHH Members (visited June 17, 2003) . 170 See Cingular/ Siemens April 4, 2003, Ex Parte Presentation at 6, 15; Motorola July 3, 2003, Ex Parte Letter at 2, 4; Sony Ericsson March 13, 2003, Ex Parte Presentation at 4, 7. 171 See HIA March 26, 2003, Ex Parte at 2- 3. Although HIA has expressed concern regarding what claims hearing aid manufacturers can make on product packaging with respect to compatibility with digital wireless phones, we note no FDA enforcement issues that would preclude such labeling. See Letter from Harold A. Pellerite, FDA Center for Devices and Radiological Health, to Marlene H. Dortch, WT Docket No. 01- 309 (July 2, 2003). 172 HIA February 20, 2003, Ex Parte at 2. 173 HIA March 26, 2003, Ex Parte at 2. 25 Federal Communications Commission FCC 03- 168 26 59. We are comfortable relying on these commitments because HIA represents a significant portion of the market for these devices. 174 Market forces should provide a sufficient incentive for hearing aid manufacturers to honor their commitments. We expect, in light of the commitment that HIA has made in the record of our proceeding, that this commitment will be honored by HIA's members, and we will view a failure to do so as a matter that may be appropriate for further examination by the Commission. Through the complaint procedures discussed below, we will be able to determine whether and to what extent compatibility problems are a result of wireless phones or hearing aids, and we will monitor the status of accessibility and consider taking further action, if appropriate. 175 While not a guarantee that every hearing aid user will be able to use digital wireless handsets meeting the ANSI standard, the measures being taken by hearing aid manufacturers, combined with wireless handset manufacturers’ compliance with the requirements of this Order, should significantly expand the accessibility of digital wireless phones and services to individuals with hearing disabilities. 60. We note that the HAC Act contemplates that phones subject to the requirements need only be capable of effective use with hearing aids designed for use with digital wireless phones. The statute requires telephones to “provide internal means for effective use with hearing aids that are designed to be compatible with telephones which meet established technical standards for hearing aid compatibility.” 176 We interpret this to mean that the statute does not require covered telephones to be compatible with all hearing aids, but rather only hearing aids with sufficient immunity to be intended for use with wireless devices and services. We believe this would refer to hearing aids meeting a U2 level of immunity under ANSI C63.19, since many newer hearing aids can meet this standard and because, when combined with a U3 or U3T digital wireless phone, the combination should allow for normal use according to ANSI C63.19. As a result, we do not expect digital wireless phones meeting the requirements of this Order to be compatible with hearing aids that lack sufficient immunity (i. e. those meeting less than a U2 level). It is possible that the hearing aid user may need to purchase a new hearing aid before being able to take advantage of digital wireless phones and services. 61. The HAC Act refers to providing for internal means for effective use with hearing aids. We interpret this 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. Until hearing aid compatibility is provided internally in digital wireless handsets in accordance with this Order, consumers can reduce or even eliminate the interference to their hearing aids by increasing the distance between the hearing aid and the wireless phone through the use of accessory devices such as neck loops or hands- free headsets. 177 However, we are aware that many consumers indicate that they are unduly restricted by accessory devices because they are cumbersome, inconvenient, and expensive. 178 174 HIA indicates that its members represent approximately 90 percent of the market for hearing aids in the U. S. See HIA June 19, 2003, Ex Parte submission. 175 47 C. F. R. Part 68, Subpart E. 176 47 U. S. C. § 610( b)( 1)( B) (emphasis added). 177 See AG Bell Comments at 4; J. Harkins, Gallaudet University Rehab Engineering Research Center on Telecommunications Access “Wireless Phones: Making Them Work for You” (visited June 26, 2003) . 178 See Consumer Action Network Comments at 2; TDI Comments at 4; AG Bell Reply Comments at 8; SHHH Sept. 24, 2002, Ex Parte Letter at 2; SHHH Sept. 12, 2002, Ex Parte (“ SHHH Mobile Phone Survey for Users of Hearing Aids and Cochlear Implants”). 26 Federal Communications Commission FCC 03- 168 27 62. Some wireless industry parties have noted that, in the future, other techniques for coupling hearing aids with digital wireless phones may be developed as alternatives to telecoil coupling. 179 We do not intend to impede these developments or preclude alternatives to telecoil coupling. To the extent technological advances occur that result in substantially equivalent or greater access to and usability by individuals with hearing disabilities, we encourage the industry to pursue them. 180 Once these new coupling methods are available, we encourage parties to keep us abreast of the developments by submitting information on the record and we may revisit the issue, if appropriate. In the meantime, we expect that industry will continue to provide products that meet the ANSI C63.19 standard in order for individuals with hearing disabilities to continue to have access to wireless telecommunications. 63. Accordingly, we are adopting certain performance standards contained in the 2001 version of ANSI C63.19 as the applicable technical standard for wireless hearing aid compatibility. We encourage ANSI to work with the relevant stakeholders to review the standard periodically to determine whether improvements to the standard are warranted. ANSI should submit any revisions to the standard to the FCC for consideration of whether to incorporate the modified standard into FCC rules. To help ensure that our rules continue to reflect the current standard, 181 we delegate to the Chief, Wireless Telecommunications Bureau, in coordination with Chief, Office of Engineering and Technology, the authority to approve future versions of ANSI C63.19 to the extent that the changes to the standard do not raise major compliance issues. At the same time, we recognize the necessity to provide opportunity for notice and comment on any changes or modifications that could affect compliance with our regulations. In cases, therefore, where major changes have been made that could affect compliance, the Commission will initiate an appropriate rulemaking proceeding to consider adoption of updated versions. 182 64. We note that CTIA and Motorola have requested that the Commission refrain from requiring manufacturers to test wireless handsets in analog mode to establish their performance rating according to ANSI C63.19. 183 They assert that testing under the analog component of the test distorts the results for dual mode phones. We understand that there are very few, if any, handsets presently on the market which operate exclusively in the analog mode, and wireless analog phones do not present the same RF interference problems to hearing aids as do digital wireless phones. Because this proceeding is primarily focused on solving the problems of digital wireless phone use by hearing aid users, testing of phones in analog mode seems to be unnecessary. 184 Therefore, in order to avoid distorting the test results for wireless phones tested in digital mode, we find that the phones need not be tested under the analog test measurement prescribed by ANSI C63.19. 179 CTIA Comments at 18; TIA Comments at 22- 23. See also CTIA June 24, 2003, Ex Parte at 7 (advocating allowing manufacturers flexibility to determine the best way to provide inductive coupling capability); Cingular/ Siemens June 5, 2003, Ex Parte at 11 (stating that rules should support “equivalent facilitation” to encourage innovative solutions that take advantage of new technologies). 180 Under the Americans with Disabilities Act (ADA), the exception for “equivalent facilitation” recognizes that future technologies may be developed, or existing technologies could be used in a particular way, that could provide the same functional access in ways not envisioned by the ADA standards. See Americans with Disabilities Act (ADA) Accessibility Guidelines, 36 C. F. R. Part 1191, Appendix A at 2.2. 181 See Wireline HAC Order, 11 FCC Rcd 8249, 8287. 182 See Procedures for Measuring Electromagnetic Emissions From Digital Devices, Report and Order, GEN. Docket No. 89- 44, 7 FCC Rcd. 3128, 3130 (1992). 183 CTIA June 24, 2003, Ex Parte Presentation at 4; Motorola May 5, 2003, Ex Parte Letter at 2. 184 To the extent hearing aid users have difficulty using wireless phones in the analog mode, such phones should provide telecoil coupling capability consistent with the U3T level prescribed by ANSI C63. 19, and they should employ means to minimize other types of electromagnetic energy that could interfere with hearing aids (such as a programmable function that enables the user to control the backlight). 27 Federal Communications Commission FCC 03- 168 28 B. Implementation Requirements 65. In order to promote competition among digital wireless handset manufacturers and to ensure that consumers have a range of options for wireless telecommunications, we adopt the following implementation requirements. We require, within two years, that each digital wireless handset manufacturer and each carrier providing digital wireless services to make commercially available at least two handsets for each air interface in its product line (i. e., CDMA, TDMA, GSM, and iDEN) which meet the U3 performance level (acoustic coupling) under ANSI C63.19. This means that carriers must offer consumers at least two compliant phone models for each air interface they offer, but not necessarily two for every manufacturer they carry. However, within two years, we require each Tier I wireless carrier offering digital wireless services to make available to consumers at least two phone models that meet the U3 requirements, or 25 percent of the total number of wireless phone models it offers, whichever is greater. 185 By the end of three years, manufacturers and carriers must offer at least two digital wireless handsets meeting the U3T performance level for providing telecoil coupling capability (inductive coupling) for each air interface offered. Carriers must make available all of their phone models that comply with the requirements of this paragraph for consumers to test in each retail store that carriers own or operate. In addition, carriers should use their best efforts to provide compliant phones to consumers within 48 hours of ordering. 66. In addition, by February 18, 2008, the date on which wireless carriers may discontinue providing analog service in accordance with the Analog Sunset Order, 186 we require 50 percent of all phone models offered by digital wireless phone manufacturers and service providers to meet the U3 performance level for acoustic coupling as a reasonable step toward manufacturers’ incorporation of hearing aid compatible functions into their phones. For purposes of calculating this 50 percent compliance percentage, as well as the 25 percent compliance percentage set forth above, we require wireless carriers and handset manufacturers to base their calculations on the total number of unique digital wireless phone models they offer throughout the nation. These requirements constitute steps toward our goal of having wireless phone manufacturers and service providers implement acoustic coupling capability (“ U3”) in all digital wireless phones at some point in the future. 67. In order to facilitate the ability of hearing aid users to obtain phones that comply with these implementation requirements, we require any reseller of a digital wireless carrier’s product offerings to carry, at a minimum, the same number of compliant phones that the carrier offers at its retail stores. In addition, we encourage distributors of digital wireless phones to offer compliant phones in their retail outlets. 68. We note that Cingular and Siemens have asked that phone manufacturers be permitted to use a “seed stock approach” to provide compliant handsets, under which handsets would be provided by manufacturers to consumers, in a timely fashion, upon request. 187 Digital wireless phone manufacturers and carriers that choose to offer compliant handsets through a central distribution point, rather than through individual retail outlets, must do so in a timely fashion. Specifically, as we have noted above, 188 we expect that carriers will make their best efforts to provide compliant phones to consumers that order them within 48 hours of the order to an address designated by the consumer. We note that we do not view 185 The Commission defined Tier I wireless carriers in the Enhanced 911 Phase II proceeding as the six CMRS carriers with national footprints (AT& T Wireless, Cingular Wireless, Nextel Communications, Sprint PCS, Verizon Wireless, and T- Mobile USA). See Revision of the Commission’s Rules to Ensure Compatibility With Enhanced 911 Emergency Calling Systems, 17 FCC Rcd 14841, 14843 (2002). 186 Analog Sunset Order, 17 FCC Rcd 18401, 18443. 187 Cingular/ Siemens May 15, 2003, Ex Parte at 3. 188 See para. 65, supra. 28 Federal Communications Commission FCC 03- 168 29 the seed stock approach as altering the obligation of carriers to make sure that they offer the requisite number of compliant handsets that will work on their network, nor would it alter the carriers’ obligation to provide their compliant handsets in their retail stores for consumers to test. To the contrary, the seed stock approach merely provides the flexibility to offer compliant wireless phones through a central distribution point. 69. We recognize that this implementation approach could have a disproportionate impact on small phone manufacturers or those that sell only a small number of digital wireless handsets in the United States, as well as on carriers that offer only a small number of digital wireless handsets. In order to address this, we adopt a de minimis exception for manufacturers and carriers that offer a small number of handset models in the U. S. Specifically, if a manufacturer or carrier offers two or fewer digital wireless handset models in the U. S., it is exempt from the compatibility requirements in this Order. If a manufacturer or carrier offers three digital wireless handset models, it must make at least one compliant phone model in two years. Furthermore, to the extent there are digital wireless providers that obtain handsets only from manufacturers that offer two or fewer digital wireless phone models in the U. S., the service provider would likewise be exempt from the rules. Similarly, if a service provider obtains handsets only from manufacturers that offer three digital wireless phone models in the U. S., that service provider would only have to offer one compliant handset model. We note that, by providing this de minimis exception, this does not mean that consumers living in areas with a limited choice of carriers, such as in rural areas, will be unable to obtain compliant phones. As CTIA has asserted, it appears that there are other avenues available for consumers to order compliant phones if they are unable to obtain one from one of their local carriers. 189 For example, consumers may be able to order a phone from the roaming partner of a local wireless carrier or directly from a wireless handset manufacturer’s web site. 190 70. In addition, in meeting the two- and three- year requirements, we encourage digital wireless phone manufacturers and service providers to provide at least one compliant phone that is a lower- priced model and one model that has higher- end features. For purposes of meeting the 50 percent level, manufacturers and carriers should continue to offer one lower- priced model and one model with higher-end features, and the features and prices of any additional compliant phones are at the discretion of the manufacturer or carrier. These steps should help to ensure that consumers have a variety of technology and feature choices. We also expect that these digital wireless phones will be offered in conjunction with attractive service plans and be as equivalent to other non- HAC phones as possible. These measures will ensure that individuals with hearing disabilities will enjoy many of the same choices in wireless telecommunications options that are available to individuals without hearing disabilities. 71. We recognize that, as manufacturers engage in testing under ANSI C63.19, some handset design changes may be necessary in some cases. With respect to meeting our telecoil coupling requirements (i. e., the "U3T" rating), we have allowed for three years until the first implementation benchmark that must be met by manufacturers and service providers. Because handset design cycles can take one year or more, 191 we conclude that three years should be sufficient time for manufacturers to make design changes, if necessary, and begin delivering phones that comply with the telecoil coupling requirements. In addition, we believe that two years is an appropriate period of time to allow for manufacturers to produce and label digital wireless phones which comply with the U3 level for reduced 189 See CTIA July 8, 2003, Ex Parte. 190 Id. 191 See Nokia July 1, 2003, Ex Parte at 4 (indicating that it is possible to include certain features within 6 months to a year). See also K. D. Schwartz, Illustration by C. Henry, "Triumph of a new design paradigm," Electronic Business, Dec. 1, 2002 (visited July 8, 2003) (referring to handset development cycles being shortened from 12 to 18 months down to a six- to nine- month time frame). 29 Federal Communications Commission FCC 03- 168 30 RF emissions, and for service providers to begin offering them to consumers. 192 For purposes of meeting the two- year time frame for offering phones meeting the reduced electromagnetic emissions part of the ANSI standard (the "U3" rating), we anticipate that most phones will not require changes to the core design. In fact, there are some handset manufacturers that indicate that they have some digital wireless handsets currently on the market that meet the U3 level. 193 As a result, we require carriers and manufacturers to make commercially available two handsets per air interface offered which comply with the U3 criteria of ANSI C63.19 within two years, and we require carriers and manufacturers to make commercially available two handsets per air interface offered which comply with the U3T criteria of the standard within three years. 194 These time periods should also provide sufficient time to label product packages and to incorporate information on the standard into user manuals. 72. In an effort to ensure consumers continued accessibility and a range of product options, we require 50 percent of all phone models offered by digital wireless phone manufacturers and service providers to be compliant with the requirements for acoustic coupling (i. e., U3) by February 18, 2008, the date on which wireless carriers may discontinue providing analog service in accordance with the Analog Sunset Order. 195 This is part of a process by which manufacturers should begin to incorporate accessibility for individuals with hearing disabilities into all of their handsets. As the Commission and Congress have recognized, access to telecommunications is essential for participation in nearly all aspects of society. 196 As a policy matter, it is important to ensure that individuals with disabilities are not left behind as digital technology evolves and improves wireless telecommunications. Nor should individuals with hearing disabilities be limited to a small number of product offerings. In this proceeding, although we are initially subjecting only a limited number of digital wireless handsets to our rules, we expect handset manufacturers and wireless service providers to continue efforts to incorporate accessible features into all of their products and services. 73. We consider providing compatibility in one half of phone models by February 18, 2008, as a feasible and desirable interim goal. We believe that, as handsets are tested and more attention and resources are focused on the issue of compatibility of wireless devices with hearing aids, the wireless industry will find ways to achieve this important goal and that it may become easier over time. As a result, this time period should provide sufficient time to apply the solutions to additional handset models. This will further expand the wireless telecommunications options for individuals with hearing disabilities. As manufacturers gain experience from working with the standard, the ability to incorporate higher levels of interference control will become more practicable. 74. Shortly after three years after the effective date of this Order, FCC staff will deliver to the Commission a report that assesses the impact of our rules in achieving greater compatibility between hearing aids and digital wireless phones. In addition, the staff report will examine the development of new technologies that could provide greater or more efficient accessibility of wireless telecommunications to hearing aid users. The staff report also will examine the impact of this Order’s compatibility requirements on cochlear implant and middle ear implant users and their ability to use 192 In addition, consumer groups support a two- year time frame for providing digital wireless handsets which comply with our rules. See RERC Feb. 28, 2002, Ex Parte Presentation; COR Comments at 1; SHHH Comments at 9. 193 See Motorola Jan. 31, 2003, Ex Parte Presentation at 14; Nokia July 1, 2003, Ex Parte Presentation at 8; Nokia July 3, 2003, Ex Parte Letter. 194 As noted above, Tier I wireless carriers must make available within two years at least two phone models that meet the U3 requirements, or 25 percent of the total number of wireless phone models it offers, whichever is greater. See supra para. 65. 195 Analog Sunset Order, 17 FCC Rcd 18401, 18443. 196 Section 255 Order, 16 FCC Rcd 6417, 6420; 47 USC 151. 30 Federal Communications Commission FCC 03- 168 31 digital wireless phones. This report will form the basis for the Commission to initiate a proceeding to evaluate: (1) whether to increase of decrease the 2008 requirement to provide 50 percent of phone models that comply with a U3 rating; (2) whether to adopt HAC implementation benchmarks beyond 2008; and (3) whether to otherwise modify the HAC requirements. We commit to initiate this proceeding soon after the report is issued. If the staff report and the record of the proceeding demonstrate that the 50 percent requirement has proven effective and practicable, we expect to establish a higher percentage requirement to be implemented after 2008, consistent with our overall goal to ensure access to digital wireless services by individuals who use hearing aids. 75. We require that tests be conducted to determine whether handsets, selected by the manufacturers as potential candidates for hearing aid compatibility, meet the U3 or U3T performance levels under the ANSI C63.19 standard. Manufacturers should then certify compliance with the compatibility requirements in this Order through the equipment authorization process set forth in Part 2 of our rules. 197 In order to verify compliance, manufacturers and service providers should include in their implementation reports a demonstration that they are offering a sufficient number of compatible handsets under our rules. This may necessitate a statement of how many handset models are being offered in the U. S. market overall as well as the number of compatible handset models, in order for us to verify that the 50 percent level has been achieved. 198 For purposes of determining whether that level has been reached, the determination of the number of handsets on the market will be made as of the time of the report. In addition, in order to verify whether a manufacturer or carrier qualifies for the de minimis exception, entities should submit reports indicating the number of handsets they offer in the U. S. 76. We acknowledge that these requirements may be more difficult to implement for some air interfaces than for others. For example, parties have noted the difficulties presented by GSM technology with respect to reducing RF emissions to levels required under ANSI C63.19. However, there is evidence that some manufacturers produce digital wireless phones for the GSM interface that are close to, or capable of, complying with the U3 and U3T performance levels of the ANSI C63.19 standard. 199 In addition, the Commission is committed to the principle of technological neutrality in its regulatory requirements. For this reason, we impose the requirements across all transmission technologies. 77. We also note that there are some digital wireless devices that are not designed to be held to the user’s ear, but which provide voice functionality in addition to serving as a personal digital assistant (PDA) or similar functionality. Typically, these devices employ a headphone or earphone device to utilize the two- way voice functionality. We understand that, because the electronics of these devices are held at a distance from the ear, they would be unlikely to cause RF interference or other EMI to hearing aids. Additionally, a telecoil contained in the device itself would not be practicable because of the large magnetic field that would need to be created given the distance that these devices will be used from the hearing aid. We expect telecoil capabilities will be developed through headsets or other means. Because of the nature of these devices, we do not require digital wireless devices that do not have any built- in speaker or ear piece to be compliant with the ANSI C63.19 requirements set forth in this Order at this time. We will continue to monitor the use of these devices and may revisit this decision in the future. 78. The record before us does not support extending the requirements to all digital wireless phones in the near term. Manufacturers have asserted that compliance for all digital wireless is not technologically feasible at this time and, such a requirement could produce undesired economic consequences, including restricted choice of handsets and a stifling of emerging technological 197 See 47 C. F. R. § 2.1033. 198 See discussion of reporting requirements at paras. 89- 91, infra. 199 See Nokia April 7, 2003, Ex Parte Presentation at 7; Motorola January 31, 2003, Ex Parte Presentation. 31 Federal Communications Commission FCC 03- 168 32 advances. 200 For example, certain manufacturers have already begun testing their handsets to the ANSI standard. 201 Those manufacturers have shown that some of their handsets are currently capable of meeting the standard. 202 They have also asserted, however, that certain features associated with more feature- rich phones present an ongoing problem that they will need time to address. In particular, Nokia and Ericsson have indicated that newer model phones that may be smaller and which include larger displays and features such as games, music, and enhanced keypads, would present battery drain, interference, and form factor issues if required to also incorporate hearing aid compatibility features. 203 In a related provision of the HAC Act, the Commission is instructed to “specifically consider the costs and benefits to all telephone users, including persons with and without hearing impairments” in formulating rules and to “ensure that regulations adopted to implement this section encourage the use of currently available technology and do not discourage or impair the development of improved technology. 204 We have, therefore, tailored our rules in a manner that recognizes that the costs of requiring compliance by all phones, at this time, would outweigh the potential benefits. 205 79. Additionally, we have tailored our rules to ensure they do not impair the introduction of new technologies. By limiting compliance, in the short term, to two handsets within two years, we are able to allow manufacturers the ability to experiment with and design new technologies and features. As noted in the proceeding, the more feature- rich wireless phones may have a greater difficulty in complying because the interference created to display and run some of those programs add to the EMI already being generated by the phone. 206 We believe, therefore, that requiring compliance in all phones, in the near term, may hinder the introduction of such wireless phones. 80. Moreover, the Commission is concerned that requiring 100 percent compliance at this time could have the unintended effect of stifling innovation. The HAC Act specifically directs the Commission to structure its rules in a manner that “[ does] not discourage or impair the development of improved technology.” 207 The diversity of wireless phones and features not only represent a robust market of ideas becoming reality, they represent a market that is characterized by rapid change in capabilities of the devices. For instance, picture phones and movie phones are becoming available at prices that may make them attractive to consumers. Interference levels of these devices are not known by the Commission at this time. However, as a policy matter and consistent with the spirit of the HAC Act, we do not want to deter the manufacturers of these products from bringing them to market. Based on the record before us and the requirements of the HAC Act, we conclude that full compliance is not feasible at this time. 81. However, we are convinced that as manufacturers work with incorporating design changes into their handsets they will gain valuable knowledge on how to control RF interference and other EMI, as well as how to ensure their handsets are capable of producing a sufficient magnetic field to allow for telecoil coupling. The Commission, therefore, asks manufacturers to include in their implementation 200 See CTIA June 13, 2003, Ex Parte at 3; Motorola July 3, 2003, Ex Parte at 4; Nokia July 1, 2003, Ex Parte Presentation at 11; Siemens June 20, 2003, Ex Parte at 1- 2; Sony- Ericsson June 18, 2003, Ex Parte at 1- 3. 201 See Motorola January 31, 2003, Ex Parte at 16; Nokia April 10, 2003, Ex Parte Presentation at 7; Cingular/ Siemens April 4, 2003, Ex Parte at 4. 202 Id. 203 See Nokia April 10, 2003, Ex Parte Presentation at 10; Sony- Ericsson June 18, 2003, Ex Parte Letter at 2- 3. 204 See 47 U. S. C. § 610( e). 205 See 47 U. S. C. § 610( e). 206 See CTIA July 3, 2003, Ex Parte Letter at 1. 207 See 47 U. S. C. § 610( e). 32 Federal Communications Commission FCC 03- 168 33 reports information that will help the Commission to make an informed decision on the soundness of requiring a greater number of handsets be capable of meeting the ANSI C63.19 standard. 208 Such information should focus on the extent to which the manufacturers’ product line is capable of meeting the ANSI C63.19 standard. This information will be considered in the Commission staff report at the end of three years and in the subsequent proceeding to evaluate whether to modify the implementation requirements set forth in this Order. C. Labeling, Reporting, and Outreach 82. In this section, we discuss the labeling and reporting requirements we adopt pursuant to the requirements of the HAC Act. 209 We also address outreach efforts and we encourage digital wireless phone manufacturers and service providers to engage in public outreach designed to educate the public, retail personnel, and people in the audiology and hearing aid dispensing field about the use of digital wireless phones with hearing aids and cochlear implants. 83. Labeling. As detailed below, the Commission will require manufacturers to place a label on the exterior packaging containing the wireless telephone indicating the U- rating of the wireless telephone. The Commission will also require manufacturers to include more detailed information on the ANSI standard in a product insert or the wireless telephone’s manual. Further, we require service providers to ensure that the label is made visible to individuals with hearing disabilities so they may determine which wireless telephone best meets their individual needs. In adopting these requirements, the Commission has balanced the needs of individuals with hearing disabilities to have access to sufficient information to make an informed decision, with the needs of manufacturers to be able to promote their products with as few encumbrances as possible. We find that the labeling requirement we adopt through this Order will provide sufficient information to the consumers, while not restricting the ability of manufacturers and service providers to promote and display their products. 84. The HAC Act instructs that the Commission “shall establish requirements for the labeling of packaging materials… to provide adequate information to consumers on the compatibility between telephones and hearing aids.” 210 This directive from Congress expresses its clear intent that we not only establish regulations to ensure access to telephones covered by the HAC Act, but that we make certain that consumers have the information necessary to make an informed decision. We, therefore, adopt requirements that will accomplish that task. 85. First, we require manufacturers to affix a label on the exterior of the wireless telephone’s box that provides the particular U- rating for that model of handset. The label should be conspicuous so that the consumer, without any assistance, can discern the U- rating of the particular hearing aid- compatible phone. Unlike our rules governing wireline hearing aid compatibility rules, we do not require the phone itself to be labeled. We require labels to be affixed to the exterior of the packaging in order to inform the purchaser of the quality of interoperability between a wireless telephone and a hearing aid. 211 86. Additionally, we require manufacturers to develop language for a product insert or placement in the handset’s manual. Such information will allow the consumer to better understand the U- rating system and could help frame the consumer’s expectation with regards to the performance of the handset. Moreover, an explanation of the U- rating would provide consumers with information needed to aid 208 See paras. 89- 91, infra (detailing information that manufacturers and service providers will need to include in their reports). 209 See 47 U. S. C. § 601( d). 210 Id. 211 47 C. F. R. § 68.300. 33 Federal Communications Commission FCC 03- 168 34 audiologists in providing a hearing aid that works well with a wireless telephone. We are not adopting specific language for inclusion in the insert; instead, we allow each manufacturer to develop language that achieves the goal of providing consumers with more detailed information on the ANSI standard. For example, the insert should explain that a higher U- rating and UT- rating indicate that the wireless phone has a lower RF emissions level and higher magnetic signal quality, respectively, which will enable successful operation of the wireless phone with more hearing aids. 87. Furthermore, to ensure that the information is conveyed to consumers, we require service providers to ensure that the U- rating is made available, either through display on the handset’s box, separate literature on which model handsets the provider offers that are compatible, through posting information on their Internet web site, or by any other means the service provider determines is sufficient, to individuals with hearing disabilities so they may determine which wireless telephone best meets their individual needs. We recognize that service providers offer their products and services through a variety of channels, including the Internet, carts in shopping malls, agents, and stand- alone stores. Some of these entities are small businesses with limited resources. We, therefore, are adopting a requirement that provides flexibility for service providers to determine how best to convey the information to the consumer. We encourage service providers to use the flexible approach we provide to adequately inform consumers with disabilities about their choices. Should the Commission receive a large volume of complaints concerning the inability of consumers to find the information our rules are asking be conveyed, we will revisit this decision. We also encourage service providers to train their personnel and agents so that they will be able to assist consumers that may have questions concerning handsets models that are hearing aid compatible. 88. In order to facilitate the matching of digital wireless handsets with hearing aids, we encourage hearing aid manufacturers to test and label their hearing aid models with their immunity level in accordance with ANSI C63.19. Such labeling should be on models of hearing aids before they are customized, either by the manufacturer or audiologist, for the user’s individual hearing loss and physiology. Because ANSI C63.19 contemplates matching hearing aids together with digital wireless phones in order to produce a satisfactory result, individuals with hearing disabilities, audiologists, and hearing aid dispensers would benefit from knowing the immunity level of hearing aids to aid in the selection process. We fully expect that hearing aid manufacturers will label hearing aid models with their specific ratings in accordance with ANSI C63.19 (i. e., U2) for several reasons. First, providing this information to consumers with hearing disabilities is in their interest from a marketing point of view. As we have noted, the number of Americans with hearing disabilities is growing, and so is wireless phone use. Thus, informing customers about the immunity level of their hearing aids would serve the hearing aid manufacturers’ market interest by facilitating hearing aid use with digital wireless phones. Second, the FDA has indicated that claims by hearing aid manufacturers concerning their ANSI immunity level, if supported by data from bench or laboratory tests, would not present enforcement concerns. 212 And, third, HIA has already taken a first step by agreeing on the record to include written material supplied with hearing aids that addresses the anticipated performance of a particular class of hearing aid models. 213 We encourage HIA to submit a report within six months after the release of this Order informing us of the plans of hearing aid manufacturers to label hearing aid models with their immunity levels according to the ANSI standard. If inadequate progress is made in this area, we will examine the scope of our jurisdiction over hearing aid manufacturers in order to facilitate the goal of achieving hearing aid compatibility for consumers. 212 See Letter from Harold A. Pellerite, FDA Center for Devices and Radiological Health, to Marlene H. Dortch, WT Docket No. 01- 309 (July 2, 2003). 213 See HIA July 2, 2003, Ex Parte submission. 34 Federal Communications Commission FCC 03- 168 35 89. Reporting. We require wireless carriers and handset manufacturers to report every six months on efforts toward compliance with the requirements of this Order during the first three years, and then annually thereafter through the fifth year of implementation. These reports will serve dual purposes: they will assist us in monitoring the progress of implementation, and they will provide valuable information to the public concerning compatible handsets. The reporting requirement will extend through the end of the fifth year following the effective date of this Order to assist in verifying compliance with the requirement to make 50 percent of all phone models offered compatible. Digital wireless phone manufacturers and service providers may submit joint reports, if they wish, in order to minimize the reporting burden. The reports should describe manufacturer and carrier efforts aimed at complying with the requirements of this Order. Specifically, the reports should provide the Commission with the following information: (1) digital wireless phones tested; (2) laboratory used; (3) test results for each phone tested; (4) identification of compliant phone models and ratings according to ANSI C63.19; (5) report on the status of product labeling; (6) report on outreach efforts; (7) information related to retail availability of compliant phones; (8) information related to incorporating hearing aid compatibility features into newer models of digital wireless phones; (9) any activities related to ANSI C63.19 or other standards work intended to promote compliance with this Order; (10) total numbers of compliant and non- compliant phone models offered as of the time of the report; and (11) any ongoing efforts for interoperability testing with hearing aid devices. 90. Digital wireless service providers should highlight in their reports any differences in handset offerings among regions of their service areas. Reports may be filed electronically via our Electronic Comment Filing System (ECFS), which is accessible at www. fcc. gov. 91. In the fourth year following the effective date of these requirements, manufacturers and carriers should include in their reports information that will help the Commission to make an informed decision on whether to extend the requirements beyond 50 percent of digital wireless phone models offered. Specifically, reporting entities should discuss the feasibility of making 100 percent of handsets capable of meeting the ANSI C63.19 standard. These reports should provide as much specific information as possible concerning the cost of implementing hearing aid compatibility into the remaining digital wireless phones manufactured, as well as a comprehensive list of all such phones offered at that time. 92. Outreach. We strongly encourage digital wireless handset manufacturers and service providers to engage in outreach efforts. These efforts would, ideally, include publicly identifying the compliant phones for consumers and audiologists. Public outreach could also list compliant phones on 35 Federal Communications Commission FCC 03- 168 36 carrier and manufacturer Internet sites, as well as communicating this information to consumer groups. For example, wireless handset manufacturers have agreed to provide information on wireless phones that provide hearing aid compatibility characteristics through a website established by CTIA. 214 In order to assist consumers as they shop for wireless phones, we strongly encourage carriers to train retail salespeople regarding which digital wireless phones are compliant. 215 This could be enhanced by providing written materials at the point of sale, such as pamphlets or other promotional literature, specifically addressing the needs of individuals with hearing disabilities. Manufacturers and carriers might also consider developing consumer education programs aimed at reaching hearing aid and cochlear implant users. Outreach efforts should also be directed toward audiologists and hearing aid dispensers, since these entities are in a good position to inform hearing aid users concerning the immunity of their hearing aids and, therefore, determine the likelihood that they will be able to use digital wireless phones and services. 93. In addition, in order to respond to the desire expressed by consumers for a trial period within which to try out digital wireless phones to determine whether they will work properly with their hearing aids, we encourage digital wireless service providers to provide a 30 day trial period or otherwise be flexible on their return policies for consumers seeking to obtain compliant phones. Consumers may need to experiment with various features and phone models to find the best match for their individual situation. Evidence in the record of this proceeding indicates that certain handset form factors, such as the “clamshell” design, tend to work better for hearing aid users. Also, any design which distances the wireless phone’s antenna from the hearing aid tends to minimize RF emissions to the phone. In addition, as discussed in paragraph 45, wireless phones with a programmable backlight setting allow the user to control the backlight of the display screen and keypad, which can also minimize interference to hearing aids. 94. The Commission, through the Consumer & Governmental Affairs Bureau, will endeavor through its educational and outreach efforts, to ensure that those most likely affected are informed about the actions taken in this Order. In addition to making facts sheets and other informational materials available for dissemination through the Commission's web site and national consumer call centers, the Commission will release a Consumer Alert outlining, among other things, the requirements the Commission is placing on carriers providing digital wireless services and digital wireless phone manufacturers to make available compliant handsets. In conjunction with these efforts, the Commission will launch a comprehensive outreach campaign specifically targeted to reach individuals who use hearing aids. The Commission will directly contact those groups and associations representative of such individuals providing them with information about the new requirements for dissemination to their members. In addition, information will be provided to schools specifically addressing the educational needs of individuals with hearing disabilities. In concert with these efforts, the Commission, through a coordinated effort with the Food and Drug Administration, will provide relevant information to groups and associations representing audiologists, as well as the medical community in general through various channels, to ensure that information is readily available to educate consumers about the accessibility of digital wireless phones to individuals who use hearing aids. Finally, the Commission will provide media outlets likely to reach individuals who use hearing aids, as well as those of general distribution, with information outlining the requirements established in this Order. 214 CTIA June 13, 2003, Ex Parte at 1- 2. The web site will also include a message board where consumers can post experiences about wireless phones they have found work with their particular hearing aids. The web site is available at . 215 CTIA has also committed its member companies to work with carriers’ sales forces, consumer groups, and professional organizations in an educational outreach effort. Id. at 2. 36 Federal Communications Commission FCC 03- 168 39 108. IT IS FURTHER ORDERED that the Commission's Office of Public Affairs, Reference Operations Division, SHALL SEND a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dortch Secretary 39 Federal Communications Commission FCC 03- 168 40 APPENDIX A Parties Filing Comments (40 Commenters) Name of Party Abbreviation Alexander Graham Bell Association for the Deaf and Hard of Hearing AG Bell American National Standards Institute Accredited Standards ANSI ASC C63 SC8 Committee C63 for Electromagnetic Compatibility Subcommittee 8 (Medical Devices) Mark Angelo Arizona Commission for the Deaf and Hard of Hearing ACDHH Association of Access Engineering Specialists AAES AT& T Wireless Services AWS ATX Technologies, Inc. ATX Cellular Telecommunications & Internet Association CTIA Cingular Wireless LLC Cingular Cochlear Americas Consumer Action Network CAN Council of Organizational Representatives on National Issues COR Concerning People Who are Deaf or Hard of Hearing George DeVilbiss Curtis F. Dickinson Richard C. Diedrichsen Dan Harper Matthew Hayat Hearing Industries Association HIA John B. Klein Charlene MacKenzie Matsushita Electric Corporation of America MECA Monty G. McCarley 40 Federal Communications Commission FCC 03- 168 41 Judith Michelman Debbie Mohney Alice Murphy National Association of the Deaf NAD Jack O’Keeffe Rehabilitation Engineering Research Center RERC on Telecommunications Access Shirley Schultz Self Help for the Hard of Hearing SHHH Self Help for the Hard of Hearing – New Hanover County Mary T. Simmons Sprint PCS Elizabeth K. Stout Jonathan Taylor Telecommunications for the Deaf, Inc. TDI Telecommunications Industry Association TIA U. S. Access Board Ronald H. Vickery Betty Hannon Yagi 41 Federal Communications Commission FCC 03- 168 42 Parties Filing Reply Comments (17 Reply Commenters) Name of Party Abbreviation Alexander Graham Bell Association for the Deaf and Hard of Hearing AG Bell Elizabeth Anderson Cellular Telecommunications & Internet Association CTIA Cingular Wireless LLC Cingular George DeVilbiss Hearing Industries Association HIA Motorola Dana Mulvany National Association of the Deaf NAD Nextel Communications, Inc. Nextel Nextel Partners, Inc. Rehabilitation Engineering Research Center RERC on Telecommunications Access Self Help for the Hard of Hearing SHHH Jonathan Taylor Telecommunications Industry Association TIA Ronald H. Vickery Jo Waldron 42 Federal Communications Commission FCC 03- 168 43 APPENDIX B FINAL REGULATORY FLEXIBILITY ANALYSIS 1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), 220 an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the section 68.4( a) of the Commission’s Rules Governing Hearing Aid- Compatible Telephones Notice of Proposed Rulemaking (Notice). 221 The Commission sought written public comment on the proposal in the Notice, including comment on the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA. 222 A. Need for, and Objectives of, Adopted Rules 2. In the Order, the Commission modifies the exemption for wireless phones under the Hearing Aid Compatibility Act of 1988 (“ HAC Act”) 223 to require digital wireless phones to provide for effective use with hearing aids. We find that modifying the exemption in the manner described in the Order will extend the benefits of wireless telecommunication to persons with hearing disabilities, thereby increasing the value of the wireless network for all Americans. The Commission took the following actions: (1) adopted certain performance levels set forth in a technical standard established by the American National Standards Institute (ANSI) as the applicable technical standard for compatibility of digital wireless phones with hearing aids; (2) required certain digital wireless phone models to provide reduced radio frequency (RF) interference (i. e., meet a “U3” rating under the ANSI standard), and required certain digital wireless phone models to provide telecoil coupling capability (i. e. meet a “U3T” rating under the ANSI standard); (3) required, within two years, each digital wireless phone manufacturer to make available to carriers and required each carrier providing digital wireless services to make available to consumers at least two handset models for each air interface it offers which offer reduced RF emissions (“ U3” rating); (4) required each Tier I wireless carrier providing digital wireless services to make available to consumers within two years at least two handset models for each air interface it offers for reduced RF emissions (“ U3” rating) or 25 percent of the total number of phone models it offers, whichever is greater; (5) required, within three years, each digital wireless phone manufacturer to make available to carriers and required each carrier providing digital wireless services to make available to consumers at least two handset models for each air interface it offers which provide telecoil coupling (“ U3T” rating); (6) adopted a de minimis exception for certain digital wireless phone manufacturers and carriers; 220 See 5 U. S. C. § 603. The RFA, see 5 U. S. C. §§ 601- 612., has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Pub. L. No. 104- 121, Title II, 110 Stat. 857 (1996) (CWAA). 221 See Section 68. 4( a) of the Commission’s Rules Governing Hearing Aid- Compatible Telephones, WT Docket No. 01- 309, RM- 8658, Notice of Proposed Rulemaking, 16 FCC Rcd 20558, 20578 (2001) (Notice). See also 47 U. S. C. § 610( b)( 2)( c). 222 See 5 U. S. C. § 604. 223 Section 710 of the Communications Act of 1934, as amended, 47 U. S. C. § 710( b)( 1)( B). 43 Federal Communications Commission FCC 03- 168 44 (7) encouraged digital wireless phone manufacturers and service providers to offer at least one compliant handset that is a lower- priced model and one that has higher- end features; (8) required 50 percent of all digital wireless phone models offered by a manufacturer or carrier to be compliant with the reduced RF emissions requirements by February 18, 2008; (9) required wireless carriers and digital wireless handset manufacturers to report semiannually (every six months) on efforts toward compliance during the first three years, then annually thereafter through the fifth year of implementation; (10) required manufacturers to label packages containing compliant handsets and to make information available in the package or product manual, and required service providers to make available to consumers the performance ratings of compliant phones; (11) committed the Commission staff to deliver a report to the Commission shortly after three years from the effective date of this Order to examine the impact of these requirements, and which will form the basis for the Commission to initiate a proceeding soon after the report is issued to evaluate whether to increase or decrease the 2008 requirement to make 50 percent of phone models with reduced RF emissions, whether to adopt implementation benchmarks beyond 2008, and whether to otherwise modify the implementation requirements; (12) encouraged hearing aid manufacturers to label their pre- customization products according to the ANSI standard; and (13) denied the petition of Myers Johnson, Inc., for revision of section 24.232 as it relates to directional wireless phone antennas. 3. The Commission takes these actions to ensure that that the Congressional goal of ensuring access to telecommunications services for persons with hearing disabilities is met. In addition, in light of our society’s increased reliance on wireless phones and the growing trend among wireless carriers to move away from analog services in favor of more efficient, feature- rich digital services, these steps will ensure that people with hearing disabilities continue to enjoy access to wireless telecommunications devices and services. B. Summary of Significant Issues Raised by Public Comments in Response to the IRFA 4. We received no comments directly in response to the IRFA in this proceeding. The Commission, however, considered the potential impact of its rules on smaller handset manufacturers and service providers. To ensure that the rules have a minimal impact on these entities, the Commission, in recognition of the adverse effect its HAC compatibility percentage requirements could have, modified the requirement for manufacturers and service providers. Therefore, the requirement that manufacturers and service providers must make 50 percent of their handsets compliant with the reduced RF emissions level (“ U3”) was modified to provide that, by February 18, 2008, 50 percent of all phones offered by the entity in the U. S. market must be compliant, or two phones per air interface offered, whichever number of handsets is greater. 224 C. Description and Estimate of the Number of Small Entities To Which the Adopted Rules Will Apply 224 See supra at para. 72. 44 Federal Communications Commission FCC 03- 168 45 5. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the adopted rules, if adopted. 225 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 226 In addition, the term “small business” has the same meaning as the term “small business concern” under section 3 of the Small Business Act. 227 Under the Small business Act, a “small business concern” is one that: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). 228 A small organization is generally “any not- for- profit enterprise which is independently owned and operated and is not dominant in its field.” 229 6. Cellular and Other Wireless Telecommunications or Paging. The SBA has developed a size standard for small businesses within the two separate categories of Cellular and Other Wireless Telecommunications or Paging. Under that standard, such a business is small if it has 1,500 or fewer employees. 230 According to the FCC's Telephone Trends Report data, 1,761 companies reported that they were engaged in the provision of wireless service. 231 Of these 1,761 companies, an estimated 1,175 have 1,500 or fewer employees and 586 have more than 1,500 employees. Consequently, we estimate that a majority of small wireless service providers may be affected by the rules. 7. Wireless Communications Equipment Manufacturers. The SBA has established a small business size standard for radio and television broadcasting and wireless communications equipment manufacturing. Under the standard, firms are considered small if they have 750 or fewer employees. 232 Census Bureau data for 1997 indicates that, for that year, there were a total of 1,215 establishments 233 in this category. 234 Of those, there were 1,150 that had employment under 500, and an additional 37 that had employment of 500 to 999. The percentage of wireless equipment manufacturers in this category is approximately 61.35%, 235 so the Commission estimates that the number of wireless equipment manufacturers with employment under 500 was actually closer to 706, with an additional 23 225 See 5 U. S. C. § 603( b)( 3). 226 5 U. S. C. § 601( 6). 227 5 U. S. C. § 601( 3) (incorporating by reference the definition of “small business concern” in the Small Business Act, 15 U. S. C. § 632). Pursuant to 5 U. S. C. § 601( 3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment , establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definitions( s) in the Federal Register.” 228 15 U. S. C. § 632. 229 Id. § 601( 4). 230 13 C. F. R. § 121.201, NAICS code 513322. 231 Telephone Trends Report, Table 5. 3. 232 13 C. F. R. § 121. 201, NAICS code 334220. 233 The number of “establishments” is a less helpful indicator of small business prevalence in this context than would be the number of “firms” or “companies,” because the latter take into account the concept of common ownership or control. Any single physical location for an entity is an establishment, even though that location may be owned by a different establishment. Thus, the number given may reflect inflated numbers of businesses in this category, including the numbers of small businesses. In this category, the Census break- out data for firms or companies only gives the total number of such entities for 1997, which was 1, 089. 234 U. S. Census Bureau, 1997 Economic Census, Industry Series: Manufacturing, “Industry Statistics by Employment Size,” Table 4, NAICS code 334220 (issued August 1999). 235 Id. Table 5, “Industry Statistics by Industry and Primary Product Class Specialization: 1997.” 45 Federal Communications Commission FCC 03- 168 46 establishments having employment of between 500 and 999. The Commission estimates that the great majority of wireless communications equipment manufacturers are small businesses. D. Description of Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities 8. The reporting, recordkeeping, or other compliance requirements adopted require that any and all of the affected entities to which the Commission’s adopted rules apply must comply with the Commission’s hearing aid compatibility rules adopted in the Order. The Commission has detailed the timeframes for compliance and was mindful of the needs of manufacturers and service providers. The timeframes, therefore, reflect the Commission’s balancing of the competing interests. We ensure that access to wireless phones for persons with hearing disabilities is maintained, and also to ensure that manufacturers and service providers are afforded a reasonable amount of time within which to comply with our rules. 9. In the Order, the Commission requires wireless carriers and handset manufacturers to report every six months on efforts toward compliance with the requirements of the Order during the first three years, and then annually thereafter through the fifth year of implementation. These reports will serve dual purposes: they will assist us in monitoring the progress of implementation, and they will provide valuable information to the public concerning compatible handsets. The reporting requirement will extend through the end of the fifth year following the effective date of the Order to assist in verifying compliance with the requirement to make at least 50 percent of all phone models offered compatible by February 18, 2008. Digital wireless phone manufacturers and service providers may submit joint reports, if they wish, in order to minimize the reporting burden. The reports should describe manufacturer and carrier efforts aimed at complying with the requirements of the Order. Specifically, the reports should include (1) digital wireless phones tested; (2) laboratory used; (3) test results for each phone tested; (4) identification of compliant phone models and ratings according to ANSI C63.19; (5) report on the status of product labeling; (6) report on outreach efforts; (7) information related to retail availability of compliant phones; (8) information related to incorporating hearing aid compatibility features into newer models of digital wireless phones; (9) any activities related to ANSI C63.19 or other standards work intended to promote compliance with the Order; (10) total numbers of compliant and non- compliant phone models offered as of the time of the report; and (11) any ongoing efforts for interoperability testing with hearing aid devices. E. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered 10. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its adopted approach, which may include the following four alternatives (among others): (1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 236 11. The critical nature of hearing aid compatibility with wireless phones limits the Commission’s ability to provide small manufacturers of wireless handsets and wireless service providers with a substantially less burdensome set of regulations than that placed on large entities. In the Order, the Commission concludes that continuing the exemption afforded wireless phones under the HAC Act would have an adverse effect on individuals with hearing disabilities. Consumers who use hearing aids or cochlear implants indicate they have had difficulty finding either wireless phones they can use without suffering from annoying and sometimes painful interference, or without resorting to expensive and 236 See 5 U. S. C. § 603( c)( 1)-( c)( 4). 46 Federal Communications Commission FCC 03- 168 47 cumbersome external attachments. Consumers state that it is becoming very difficult to find analog wireless phones and services, and they are unable to use most digital wireless phones because of the resulting interference. By not being able to take advantage of most newer, digital wireless phones and services, hearing aid users assert they cannot take advantage of the attractive pricing and service plans available to other consumers, many of which include free or reduced- price phones, because the phones offered do not work with their hearing aids. Some consumers point out that their lack of ability to use a digital wireless phone causes them problems in their employment, particularly since many employers now rely on digital phones and services to stay in contact with employees in the field. A few consumers reported difficulty in finding a phone that works with their hearing aids because they were unable to test the phone before purchasing it. Some consumers expressed a desire to use a wireless phone for emergency use while away from home. However, because they are unable to find one they can use, they are forced to accept greater risks than non- hearing aid users since they are unable to call 911 even if they have access to a digital wireless phone. 12. In the Order, however, the Commission recognizes that certain manufacturers and service providers may have only a small presence in the market. For those manufacturers and service providers, the Commission adopted a de minimis exception. Specifically, if a manufacturer or carrier offers two or fewer digital wireless handset models in the U. S., it is exempt from the compatibility requirements in this Order. If a manufacturer or carrier offers three digital wireless handset models, it must make at least one compliant phone model available in two years. Furthermore, to the extent there are digital wireless providers that obtain handsets only from manufacturers that offer two or fewer digital wireless phone models in the U. S., the service provider would likewise be exempt from the rules. Similarly, if a service provider obtains handsets only from manufacturers that offer three digital wireless phone models in the U. S., that service provider would only have to offer one compliant handset model. 237 13. In addition, in considering the possible impact of our rules on the many small business owners that act as agents for service providers, the Commission crafted its labeling rules to allow these entities flexibility in how they convey the information persons with hearing disabilities will need to make an informed purchase. 238 G. Report to Congress 14. The Commission will send a copy of the Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. 239 In addition, the Commission will send a copy of the Order, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Order and FRFA (or summaries thereof) will also be published in the Federal Register. See 5 U. S. C. § 604( b). 237 See supra at para. 69. 238 See supra at para. 87. 239 See 5 U. S. C. § 801( a)( 1)( A) 47 Federal Communications Commission FCC 03- 168 48 H. Effective Date of Adopted Rules 15. Pursuant to 5 U. S. C § 553( d), 240 the rules adopted herein shall take effect thirty (30) days after publication in the Federal Register. 240 5 U. S. C. § 553( d). 48 Federal Communications Commission FCC 03- 168 49 APPENDIX C – FINAL RULES Revise Part 20 to include New Hearing Aid Compatibility Provision as follows: [§ 20.19] Hearing Aid- Compatible Mobile Handsets. (a) Scope of section. This section is applicable to providers of Broadband Personal Communications Services (part 24, subpart E of this chapter), Cellular Radio Telephone Service (part 22, subpart H of this chapter), and Specialized Mobile Radio Services in the 800 MHz and 900 MHz bands (included in part 90, subpart S of this chapter) if such providers offer real- time, two-way switched voice or data service that is interconnected with the public switched network and utilizes an in- network switching facility that enables the provider to reuse frequencies and accomplish seamless hand- offs of subscriber calls. This section also applies to the manufacturers of the wireless phones used in delivery of these services. (b) Technical standard for hearing aid compatibility. A wireless phone used for public mobile radio services is hearing aid compatible for the purposes of this section if it meets, at a minimum: (1) for radio frequency interference: U3 as set forth in the standard document ANSI C63.19- 2001 “American National Standard for Methods of Measurement of Compatibility between Wireless Communication Devices and Hearing Aids, ANSI C63.19- 2001” (published October 8, 2001 – available for purchase from the American National Standards Institute); and (2) for inductive coupling: U3T rating as set forth in the standard document ANSI C63.19- 2001 “American National Standard for Methods of Measurement of Compatibility between Wireless Communication Devices and Hearing Aids, ANSI C63.19- 2001” (published October 8, 2001 – available for purchase from the American National Standards Institute). (3) Manufacturers must certify compliance with the test requirements and indicate the appropriate U- rating for the wireless phone as set forth in section 2.1033( d). (c) Phase- in for public mobile service handsets concerning radio frequency interference. (1) Each manufacturer of handsets used with public mobile services for use in the United States or imported for use in the United States must (A) offer to service providers at least two handset models for each air interface offered that comply with § 20.19( b)( 1) by [two years after publication in the Federal Register]; and (B) ensure at least 50 percent of their handset offerings for each air interface offered comply with § 20.19( b)( 1) by February 18, 2008. (2) And each provider of public mobile service must (A) include in their handset offerings at least two handset models per air interface that comply with § 20.19( b)( 1) by [two years after publication in the Federal Register] and make available in each retail store owned or operated by the provider all of these handset models for consumers to test in the store; and (B) ensure that at least 50 percent of their handset models for each air interface comply with § 20.19( b)( 1) by February 18, 2008, calculated based on the total number of unique digital wireless handset models the carrier offers nationwide. (3) Each Tier I carrier must (A) include in their handset offerings at least two handset models or 25 percent of the total number of unique digital wireless handset models offered by the carrier 49 Federal Communications Commission FCC 03- 168 50 nationwide (calculated based on the total number of unique digital wireless handset models the carrier offers nationwide), whichever is greater, for each air interface that comply with § 20.19( b)( 1) by [two years after publication in the Federal Register], and make available in each retail store owned or operated by the carrier all of these handset models for consumers to test in the store; and (B) ensure that at least 50 percent of their handset models for each air interface comply with § 20.19( b)( 1) by February 18, 2008, calculated based on the total number of unique digital wireless phone models the carrier offers nationwide. (d) Phase- in for public mobile service handsets concerning inductive coupling. (1) Each manufacturer of handsets used with public mobile services for use in the United States or imported for use in the United States must offer to service providers at least two handset models for each air interface offered that comply with § 20.19( b)( 2) by [three years after publication in the Federal Register]. (2) And each provider of public mobile service must include in their handset offerings at least two handset models for each air interface that comply with § 20.19( b)( 2) by [three years after publication in the Federal Register], and make available in each retail store owned or operated by the provider all of these handset models for consumers to test in the store. (e) De minimis exception. (1) Manufacturers or mobile service providers that offer two or fewer digital wireless handsets in the U. S. are exempt from the requirements of this section. (A) For mobile service providers that obtain handsets only from manufacturers that offer two or fewer digital wireless phone models in the U. S., the service provider would likewise be exempt from the requirements of this section. (2) Manufacturers or mobile service providers that offer three digital wireless handset models, must make at least one compliant phone in two years. (A) Mobile service providers that obtain handsets only from manufacturers that offer three digital wireless phone models in the U. S. would be required to offer at least one compliant handset. (f) Labeling requirements. Handsets used with public mobile services that are hearing aid compatible, as defined in § 20. 19( b) of this chapter, shall clearly display the U- rating, as defined in 20.19( b)( 1), (2) on the packaging material of the handset. An explanation of the ANSI C63.19- 2001 U- rating system shall also be included in the owner’s manual or as an insert in the packaging material for the handset. (g) Enforcement. Enforcement of this section is hereby delegated to those states which adopt this section and provide for enforcement. The procedures followed by a state to enforce this section shall provide a 30- day period after a complaint is filed, during which time state personnel shall attempt to resolve a dispute on an informal basis. If a state has not adopted or incorporated this section, or failed to act within 6 months from the filing of a complaint with the state public utility commission, the Commission will accept such complaints. A written notification to the complainant that the state believes action is unwarranted is not a failure to act. The procedures set forth in Part 68, Subpart E are to be followed. 50 Federal Communications Commission FCC 03- 168 51 Revise Section 2.1033: [§ 2.1033( d)] Applications for certification of equipment operating under Part 20, that a manufacturer is seeking to certify as hearing aid compatible, as set forth in section 20.19 of that part, shall include a statement indicating compliance with the test requirements of section 20.19 and indicating the appropriate U- rating for the equipment. The manufacturer of the equipment shall be responsible for maintaining the test results. 51 Federal Communications Commission FCC 03- 168 52 SEPARATE STATEMENT OF CHAIRMAN MICHAEL K. POWELL Re: In the Matter of Section 68.4( a) of the Commission’s Rule Governing Hearing Aid- Compatible Telephones; WT Docket No. 01- 309 Today the Commission takes a historic step in making digital wireless technologies accessible by consumers with disabilities by modifying the Hearing Aid Compatibility exemption for wireless phones. For fifteen years, the exemption has remained in place – potentially walling off full access to these groundbreaking technologies for millions of Americans. Today we tear down that wall. As a society we are diminished by our inability to communicate readily with persons with hearing disabilities. Approximately one in ten Americans has such a disability and experts expect that number only to rise. As the technology and the marketplace have matured, it has become increasingly clear that the exemption is no longer a tenable course. I fundamentally believe that one of our core obligations as public servants is to ensure that all Americans have access to transformative communications technologies. The Commission has moved aggressively to realize this goal through a number of initiatives including our Section 504 Handbook, funding of IP Relay, and our revised TRS rules. That commitment is further illustrated by today’s decision. Our work is not yet complete. In the months and years ahead, we will continue to work with the phone manufacturers, the hearing aid community and wireless carriers to ensure that the goals established in this order are met. The technical standard we adopt today relies on both cell phone and hearing aid manufacturers to test and label their products in order for consumers to make informed choices in the marketplace. We stand ready to work cooperatively with all of these parties to make sure this process works. Our next steps are not just with industry, however. The Wireless and Consumer and Governmental Affairs Bureaus will be partnering with other government and private groups to educate consumers about compatibility. As part of this effort, I particularly appreciate the Food and Drug Administration’s commitment to work with the FCC to educate consumers, audiologists, and other groups to ensure individuals with hearing disabilities may take full advantage of these services. 52 Federal Communications Commission FCC 03- 168 53 SEPARATE STATEMENT OF COMMISSIONER KATHLEEN Q. ABERNATHY Re: Section 68.4( a) of the Commission’s Rules Governing Hearing Aid Compatible Telephones, WT Docket No. 01- 309, RM- 8658 Over the past few years, an increasing number of American consumers have come to rely on their wireless phones for safety, business and personal reasons. Accordingly, as wireless phones become even more pervasive, it is imperative that we ensure these phones are available for use by all consumers. Unfortunately, not all digital wireless phones provide access to consumers who use hearing aids because of interference and other technological issues. In today’s item, we take an important step in increasing digital wireless access by the hearing disabled community. We are addressing the technological hurdles by requiring equipment manufacturers and wireless service providers to reduce the amount of interference emitted from digital wireless phones and to provide the internal capability for telecoil coupling. This action will result in members of the hearing disabled community having dramatically increased access to digital wireless phones – access that will improve their lives and promote their safety. The starting point for this proceeding is the Hearing Aid Compatibility Act which states that when technology allows, wireless phones must come into compliance with the Act’s mandate. In this situation, we are driven by Congressional intent, not by market forces. In light of changed circumstances and improved technological capabilities, I believe that continuing the blanket exemption for wireless phones from the Hearing Aid Compatibility Act would be inconsistent with the intent of the Act, as well as being detrimental to individuals with hearing disabilities. Further, the record in this proceeding affirmatively demonstrates that it is technologically feasible to manufacture a digital wireless phone at a reasonable and marketable rate. The FCC, as required by the Hearing Aid Compatibility Act, must respond to these changed circumstances by updating its rules. Accordingly, I fully support modifying the blanket exemption contained in the Hearing Aid Compatibility Act for wireless phones to ensure that hearing disabled consumers have access to the digital wireless world. The successful implementation of our rules will require that wireless phone equipment manufacturers and service providers, consumer advocacy groups and hearing aid manufacturers work together to ensure that the hearing disabled have access to the digital wireless phone that works best for them. For instance, while our rules mandate the availability of digital wireless phones that meet established ANSI standards for interference, this does not necessarily mean that these phones will work with every hearing aid. Accordingly, we encourage industry and consumer advocacy groups to work together and be creative in reaching out to specific segments of consumers, such as the elderly, to make sure that they are aware of the choices available to them through our ruling today. In addition, it is important that the hearing aid and wireless phone industries institute policies to allow the hearing disabled additional flexibility in ensuring that their digital wireless phones and hearing aids work successfully together. At the end of the day our goal, and the goal of Congress in passing the Hearing Aid Compatibility Act is that “[ t] he hearing impaired should have access to every telephone like the non-hearing impaired.” 241 241 H. R. Report No. 100- 674, at 7 (1988). 53 Federal Communications Commission FCC 03- 168 54 SEPARATE STATEMENT OF COMMISSIONER MICHAEL J. COPPS Re: Section 68.4 of the Commission’s Rules Governing Hearing Aid- Compatible Telephones, Notice of Proposed Rulemaking We all often talk about the power of technology to make American’s lives better. We talk about the transformative potential of innovation and communications advances. We all recognize that it is the duty of this Commission to work to make technology available to all Americans. This duty comes into sharp focus in Orders like this. The first speech I gave as a FCC Commissioner was in Sioux Falls, South Dakota, at the 14 th International Conference of Telecommunications for the Deaf. This is where our responsibilities in this area became clear to me. I, along with my colleagues, recognize the unique challenges faced by hard- of- hearing Americans and the unique possibilities presented by communications technologies to this community. Congress also recognizes these challenges and opportunities, and has told us that we must make communications technologies accessible by people with disabilities. So my goal as a FCC Commissioner is to follow the directive of Congress and to help bring the best, most accessible and cost- effective telecommunications system in the world to our people – and I mean all of our people. That means that each and every American should have access to the wonders of wireless telecommunications. Today we take an important step toward that goal. We adopt the ANSI performance standard and phase in a requirement that mobile phones meet this standard. In two years 25 percent of all Tier One carriers’ phones must comply. On the day that the analog standard disappears a little under five years from now, hard- of- hearing Americans will find that 50 percent of all wireless phones are compatible with their hearing aids. And we don’t stop there. Three years from now, when we have more information on how implementation is progressing, we commit to begin a proceeding to explore setting additional benchmarks above 50 percent. Importantly, we state that our goal is 100 percent compliance. We have a long way to go. But this is a good start. With this action our Commission adds to a list of actions the past Commission took to promote accessibility. The previous Commission wrote new rules to ensure that communications products and services are accessible to those with disabilities, as Congress directed, in Section 255; overhauled and updated our Telecommunications Relay Services (TRS) rules to provide for faster, more effective relay services; established 711 for relay services so that consumers will no longer need to remember different TRS numbers and TRS users will be able to put one number on their business cards, thereby making it easier for people to call them; and took action on captioning to ensure that everyone has access to televised information, including, most importantly, warnings about emergency situations. This Commission has maintained and in some instances built upon these actions, and I’m happy to say that we continue this trend today. Furthermore, I want to recognize the dedication of the wireless industry to serving people with disabilities. Over my tenure here I’ve seen a new and vigorous commitment by manufacturers and carriers. These manufacturers and the carriers are the ones who will make this Order work, and their recent performance has been commendable. I also want to congratulate the wide range of organizations that represent people with hearing loss. They have been pushing the Commission to take action for years and years on this proceeding. They represent their community ably and professionally. And I want to stress again the importance of this Commission always making special efforts to reach out to our disabilities communities whose 54 Federal Communications Commission FCC 03- 168 55 resources are stretched thin but who are so profoundly affected by so many of the proceedings before the FCC. Finally, I want to thank my colleagues and the staff for their hard work on this item. They were flexible and open to compromise. I appreciate that and think that in the end the process of working together led to a far better Order. Thank you. 55 Federal Communications Commission FCC 03- 168 56 SEPARATE STATEMENT OF COMMISSIONER KEVIN J. MARTIN Re: Section 68.4( a) of the Commission’s Rules Governing Hearing Aid- Compatible Phones, Report and Order, WT Docket No. 01- 309, RM- 8658 This item addresses a very important issue. Approximately one in ten Americans – and one in three over the age of 65 – suffers from some level of hearing loss. Many of these people are able to mitigate their loss through the use of hearing aids and cochlear implants. Consumers that use these devices, however, may suffer annoying and sometimes painful interference when using digital wireless phones. Unlike analog wireless phones, which do not generally cause interference for hearing aid users, the electromagnetic energy emitted by digital phones’ antenna, backlight, and other components can cause interference to hearing aids and cochlear implants. But digital phones have become pervasive. Analog phones are not only becoming less and less available, they increasingly do not offer the same services and pricing packages as digital phones. At the same time, the importance of wireless phones has grown dramatically since Congress passed the Hearing Aid Compatibility Act of 1988 (HAC Act). Consumers have come to rely on the phones for emergencies. Some are now substituting wireless phones for their landline phones. Many employers now rely on wireless phones to stay in contact with employees in the field. This item recognizes the importance of wireless phones for all Americans and concludes that, to the extent possible, hearing impaired individuals should not be excluded. While exactly how to make this happen is a difficult question, this item takes some important steps in the right direction. Most importantly, this item adopts a standard for hearing aid compatibility and establishes a specific timeframe for manufacturers and carriers to make available hearing aid- compatible digital wireless phones. These actions promote the Congressional goal of ensuring access to telecommunications services for individuals with hearing disabilities and are critical in light of the rising importance of wireless phones. I am thus pleased to support the Order. 56 Federal Communications Commission FCC 03- 168 57 SEPARATE STATEMENT OF COMMISSIONER JONATHAN S. ADELSTEIN Re: Section 68.4( a) of the Commission’s Rules Governing Hearing Aid- Compatible Telephones; WT Docket No. 01- 309 I am very pleased to support today’s Report and Order because it takes significant steps toward improving the access to digital mobile wireless phones by those Americans who use hearing aids. While the Hearing Aid Compatibility Act of 1988 (HAC Act) exempted mobile wireless phones from hearing aid compatibility, Congress specifically entrusted this Commission with periodically assessing the appropriateness of continuing this exemption. Today, we take that obligation to heart and rightly modify the exemption as it currently applies to digital mobile wireless phones. As I said recently, public interest issues, especially the rights of those with hearing impairments, always should remain in the forefront of our decisions. While a staff member in the U. S. Senate, I worked on the Americans with Disabilities Act and devoted a great amount of attention to the Social Security Disability Insurance program. These concerns remain central to me on the Commission, as well. I recognize that some may argue that it has taken the Commission too long to reach the decision to modify the exemption and that our Report and Order does not go far enough. Conversely, others may take the view that we are exceeding our mandate in adopting requirements to accommodate a relatively small number of customers. I believe that our decision strikes the right balance between these divergent views. This is consistent with the requirements of the HAC Act to consider a number of competing issues in assessing the exemption such as the public interest, the effect of the exemption on hearing- impaired individuals, the state of technology, and the cost of compliance. Most importantly, as a Commission, we have made a unanimous decision to greatly improve accessibility to digital wireless telecommunications by those with hearing impairments by requiring mobile wireless carriers and manufacturers to increase the number of wireless phones that can be used effectively with hearing aids. We also expressed our expectation that the manufacturers of hearing aids take specific actions to assist their customers in finding compatible hearing aids and digital wireless handsets. We have stepped in where the market did not step up. I can think of no more an appropriate action for a government agency to take than the one we do today. I would like to thank the staff of the Wireless Telecommunication Bureau and its Policy Division for their hard work on an often challenging item. Our decision is thoughtful but firm in its resolve. I look forward to tracking the progress of our decision and its positive impact on the hearing impaired community over the upcoming years. 57