FCC 89-137 Federal Communications Commission Record 4 FCC Rcd No. 11 recent technological and other changes. On March 29. Before the 1988. we issued a Notice of Proposed Rule Making and Federal Communications Commission Further Notice of Inquiry (Notice), CC Docket No. 87-124. Washington, D.C. 20554 3 FCC Rcd 1982 (1988), proposing. among other things, specific rule changes that. if adopted. could increase the ability of the hearing impaired to access telephone ser- vices. We proposed to expand the definition of essential CC Docket No. 87-124 telephones to include all credit card-operated telephones and workplace telephones located in common areas likely In the Matter of to be used by hearing impaired employees. In the .Notice we noted that Section 710(b) of the Disabled Act prohib- Access to Telecommunications Equipment ited the Commission from requiring all telephones to be hearing aid compatible. 6 The Disabled Act also directed and Services by the Hearing Impaired the Commission, in implementing the Act through regu- and Other Disabled Persons lations. to consider the costs and benefits to "all telephone users, including persons with and without hearing impair- ments" and to adopt rules that "encourage the use of FIRST REPORT AND ORDER currently available technology and do not discourage . .. the development of improved technology." 47 U.S.C. § Adopted: May 4, 1989; Released: May 11, 1989 7 10(e). 3. After we released the Notice, the HAC Act was By the Commission: enacted. The HAC Act. with some limited exceptions. requires telephones manufactured in or imported into this 1. On August 17, 1988. the President signed into law country after August 16. 1989. to be HAC. and directs the the Hearing Aid Compatibility Act of 1988, Public Law Commission to adopt appropriate rules. On February 16. 100-394 (HAC Act). The HAC Act requires all "essential" 1989, we issued a Further Notice of Proposed Rule Making telephones' and nearly all telephones manufactured in or (FNPRM) to comply with the instructions of Congress.' imported into this country after August 16, 1989, to be In our FNPRM. we concluded that the HAC Act elimi- hearing aid compatible (HAC). The new law directs the nates the need for the Commission to expand the defini- Commission to "complete Rule Making actions required tion of "essential" telephones as was proposed in the to implement the amendments made by the Hearing Aid Notice. Our proposed rules were tailored to the HAC Compatibility Act of 1988 within nine months after the Act, providing generally that all telephones manufactured date of enactment of such Act." HAC Act § 710(f). This or imported after August 16, 1989 be hearing aid com- Report and Order complies with that directive. patible, with some exceptions applying to telephones used with public mobile services, private radio services and cordless telephones. BACKGROUND 2. In response to the Telecommunications for the Dis- abled Act of 1982, Public Law 97-410, (Disabled Act) the COMMENTS AND DISCUSSION Commission, on December 1, 1983, adopted rules de- 4. The Rules. We initiated the FNPRM to comply with signed to improve the availability of telecommunications the instructions of Congress described in the HAC Act. In equipment and services for the hearing impaired and so doing, we proposed to amend Part 68 of the rules to other disabled persons.2 These rules: (1) require tele- require all essential telephones and all new telephones phones classified as "essential" to be internally compatible3 manufactured in or imported into this country after Au- with hearing aids specially designed for telephone use: gust 16. 1989, to be HAC. with the exception of tele- (2) describe the technical standards hearing aid compati- phones used in public mobile and private radio services, ble telephones must meet: (3) require each telephone and those classified as secure telephones. In addition. package to denote whether the telephone is hearing aid following language of the HAC Act. c pioposed that compatible: and (4) allow carriers to provide "specialized cordless telephones have a grace period of three years terminal equipment" to persons with hearing, sight, after the date of enactment of the HAC Act during which speech or mobility impairments, and permit state com- they need not comply with the HAC requirement. We missions to allow carriers to recover through tariffs "rea- also proposed that the exemptions for telephones used sonable and prudent costs not charged directly to users of with public mobile and private radio services be periodi- such equipment." During the 1982 Congressional hearings cally reviewed, as required by the HAC Act. We further leading to the Disabled Act and in preliminary Commis- noted that the HAC Act does not require any retrofitting 4 sion proceedings, it was evident that a segment of the of units manufactured or imported prior to August 17, U.S. population was having difficulty obtaining telecom- 1989, and that it permits the sale of these telephones until munications services and equipment because of certain stock is depleted. physical disabilities. This Commission believed the rules s 5. During its deliberation of the HAC Act, Congress adopted in its further proceedings would improve access found that although it had acted earlier to improve hear- to telecommunications services by these disabled persons. ing impaired persons' access to the telephone network. Subsequently, a number of parties presented arguments to there are many telephones still inaccessible to the hearing the Commission suggesting that these rules were not ade- impaired community. Under the Disabled Act, only tele- quate to accomplish their intended purpose. In response, phones classified as "essential" are required to be HAC. the Commission initiated this docket to examine the effec- Except for coin operated telephones, telephones are in tiveness of the current rules, particularly in the wake of this class by virtue of their location. e.g., telephones in 4 FCC Red No. 11 Federal Communications Commission Record FCC 89-137 4 FCC Red No. 11 Federal Communications Commission Record FCC 89-137 hospital rooms and telephones at hearing impaired per- rules proposed in the FNPRM to conform with the exist- sons' work stations are essential. Congress pointed out ing Section 68.4 as it relates to coin-operated and ho- that it is impossible to adequately define "essential tele- tel/motel telephones. phones" to cover all possible situations in which hearing impaired persons may need access to a telephone. It stat- 7. USTA concurs with the Commission's conclusion ed: that the HAC Act eliminates the need for the Commission to expand the definition of "essential" telephones as pro- No matter how broadly the FCC defines "essential", posed in the Notice. While AT&T also supports the pro- it is impossible to specify in advance all the tele- posed rules, it urges the Commission not to forsake the phones that a hearing aid user might need. The Commission's original proposal to expand the definition travelling salespeople, repairmen and women, doc- of "essential" telephones to include credit card and tors, and others who make house calls or work workplace telephones. It maintains that for a period of outside of an office, for instance, often use tele- time manufacturers may supply these telephones from phones that would not be classified as "essential"... existing stock, which need not be HAC. The Commis- sion's original proposal, it suggests. would at least ensure that telephones at these locations would be HAC regard- less of their manufactured or importation date. NCLD- OUT agrees with AT&T. arguing that the Commission in the Notice '0 justified the proposed expansion because the benefits of compatible workplace telephones outweighed Even if the FCC's rules theoretically covered all the their cost." It also states that Congress mandated that the potential situations in which a hearing aid user Commission proceed with its earlier proposal, citing might need a HAC telephone, it is doubtful such House Report No. 100-674 (100th Cong. 2d Sess.) at 3, 4 rules could be enforced. and 15; Senate Report No. 100-391 (100th Cong.. 2d Sess.) at 2 and 3; and Public Law 100-394 §§ 2(1) and 2(4). Senate Report at p. 3. To ameliorate the problem. Con- NCLD-OUT also notes: gress found it best to impose the responsibility for the HAC requirement on telephone manufacturers. It reasoned that this group has fewer members and has a Not only did Congress direct the FCC not to limit better line of communication among its members. Con- the above definition to telephones at an individual's gress found that migration to HAC telephones would workstation - and, by implication, to expand the occur naturally over time. Senate Report at p. 5. definition of essential telephones in the workplace - but it specifically mandated the Commission to in- clude in that definition all telephones operated by 6. BellSouth Corporation states that the proposed rules credit card. The failure of the FCC to complete its strike the appropriate balance among the interests re- NPRM ignores this Congressional directive. flected in the MAC Act and will enhance accessibility to telecommunications services by the hearing impaired. USTA supports the proposed rules, finding the FNPRM NCLD-OUT Comments at p.5. responds to the HAC Act. However, USTA offers some editorial suggestions designed, it claims, to focus on the 8. In its reply comments, NATA agrees with the Com- telephone itself rather than communications services. mission's conclusion that the HAC Act removes the need More specifically, USTA suggests that the words: to continue with the proposal to expand the definition of "essential" telephones to include credit card and workplace telephones. It explains that following AT&T's "telephone used with" be inserted immediately be- recommendation would lead to the expense and burden fore the words "private radio services" in both pro- that Congress attempted to avoid by not imposing posed section 68.4(a)(1) and proposed section retrofitting requirements for existing telephones and al- 68.4(a)(4). USTA suggests that a comma be inserted lowing a year grace period for new telephones to meet the after the words "private radio services" in proposed HAC standard. It further indicates that Congress did not section 68.4(a)(1). Finally, USTA suggests that the define workplace telephones as "essential" because it rec- be inserted im- words "telephones used with" also ognized "the burdensomeness and difficulty of enforcing. before the words "public mobile services" mediately . .. rules defining essential telephones by location instead in proposed section 68.4(a)(4). of by type." NATA Reply at p. 3. Adopting AT&T's 9 proposal, it states, would lead to unenforceable rules and USTA Comments at p. 2. In addition, USTA recom- a burden and expense of retrofitting not intended by mends that proposed Section 68.4(a)(3), which character- Congress. izes a hearing aid compatible telephone, use the language 9. GTE contends that AT&T has mischaracterized the of the HAC Act's Section (b)(1). In the alternative, it HAC Act. It explains that AT&T claims the new law suggests that the proposed section should be modified to narrows the definition of "essential" telephones. But, ac- indicate that Section 68.316 meets the statutory require- cording to GTE, the MAC Act did not alter the definition ment. ALso see GTE Comments at p. 3. We agree with of essential telephones, nor introduce any changes in the these recommendations and, because these are editorial Disabled Act or the Commission's rules. Nevertheless. changes not affecting the substance of the rules, we will GTE agrees with AT&T that the new law did not expand revise the language of the proposed rules to incorporate the definition of "essential" telephones as proposed by the these suggestions. We also modify Section 68.4(a)(2) of the Commission in the Notice. Congress, it states, took a different approach, i.e., enacting a law requiring virtually universal hearing aid compatibility for telephones. The 4597 FCC 89-137 Federal Communications Commission Record 4 FCC Red No. t1I FCC 89-137 Federal Communications Commission Record 4 FCC Rcd No. II remaining question. according to GTE. is whether the all credit card telephones to be HAC immediately. We Commission ought to expand the definition of "frequently believe that. if there are such telephones. they will be- needed" telephones while complying with the mandate of come HAC as they are replaced over time. the HAC Act. GTE believes the Commission should not 12. Complex Equipmenl. GTE expresses concern about because the difference is marginal. Moreover. it notes, the treatment of telephones used as components of com- except for coin-operated and emergency telephones. the plex devices, such as facsimile machines and private Commission is precluded from requiring retrofitting of branch exchanges (PBXs). It believes that an assembly, telephones to achieve hearing aid compatibility. There- i.e., a complex device, qualifies as a "telephone" under fore, already installed non-HAC credit card telephones "in the Commission's proposed rules. It argues that if the stock" before August 17 would continue to be non-com- complex device is assembled after August 16. 1989, but patible. If AT&T's rule were adopted, such telephones contains a non-HAC telephone manufactured prior to would become surplus equipment and probably junked. August 17, 1989, the entire device is exempt from the argues GTE. In its view, the marginal increase in avail- HAC Act. In other words, if a complex equipment manu- able HAC telephones does not justify discarding service- facturer purchases non-HAC telephones manufactured or able equipment, nor did Congress require such action, it imported prior to August 17, 1989, the finally assembled concludes. device need not comply with the HAC Act to be sold. 10. Discussion. In light of the action taken by Congress, However. it states that such devices must continue to expanding the definition of "essential" telephones to in- comply with Sections 68.112 (identifies locations where clude workplace telephones in common areas appears "essential" telephones, i.e., HAC telephones. must be 2 unwarranted.' Moreover, the definition of common areas placed), 68.218 (details the responsibility of grantee of could not be sufficiently defined to cover all areas where equipment registration) and 68.224 (requires grantee of the hearing impaired might need a telephone in the work equipment registration to provided notice of hearing aid- environment. The ambiguity of the term could lead to compatibility) of the rules. challenges and could put the Commission in the position 13. Discussion. GTE's analysis that these devices would of being unable to enforce the requirement. Congress be treated as telephones under the rules is correct. Equity recognized the difficulty of enforcing rules of this nature. requires that we permit the incorporation of non-HAC Thus. we will adopt Congress' approach to the overall telephone handsets in other telecommunications devices problem of hearing aid users, i.e., require nearly all tele- after August 17. It would be unfair to permit retail of phones to be hearing compatible. As Congress noted, this non-HAC telephone handsets after that date as self-con- scheme will not guarantee immediate universal hearing tained units and forbid their use in other products. Con- aid compatibility, but over time that goal will be realized. gress recognized that the supply of non-compatible 11. We now turn to the issue of whether all credit card telephones would not be exhausted by the effective date of telephones should be included in the definition of "essen- the new law, and therefore provided for their retail until tial" telephones. Currently, credit card telephones must the stock is depleted. The requirements which apply to be hearing aid compatible "unless a hearing aid compati- the handsets are equally applicable to the equipment in ble coin-operated telephone providing similar services is which handsets are incorporated. Congress placed no re- nearby and readily available." 47 C.F.R. § 68.112(c)(1). straints on the use of these non-compatible devices, and Contrary to NCLD-OUT's view, the new law does not the policy against retroactive application of the HAC re- require that we expand the definition of "essential" tele- quirement argues in favor of GTE's interpretation, except 1 3 phones. In fact, the applicable legislative history" is they may not be employed at sites where telephones are critical of the definitional approach to remedying the deemed "essential". See 47 U.S.C. § 710(b)(1)(A) and 47 difficulties the hearing impaired encounter in using tele- C.F.R. § 68.112. phones. Moreover, the perceived unavailability of HAC 14. Secure Telephones. The HAC Act exempts "secure" credit card telephones does not appear to be as acute as telephones from the HAC requirement. The HAC Act NCLD-OUT implies. Our Part 68 records indicate that defines "secure" telephones as "telephones that are ap- there are 16 registered series of credit card telephones that proved by the United States Government for the transmis- may be attached to the network. Of these, four do not sion of classified or sensitive voice communications." contain a statement that they are HAC. This does not Section 710(b)(4)(D). AT&T requests that the Commission necessarily mean that all four of these units are, in fact, allow private customers to also use exempt secure tele- not HAC because some were registered prior to the adop- phones, stating that private customers may have a need tion of our HAC standards and requirements. No evi- for these telephones. It states that "secure telephones" do dence has been submitted regarding (1) how many credit not generate an external magnetic field, "thus, it is card telephones are not hearing aid compatible, or (2), if infeasible for them to also provide a HAC capability." any, how many have caused inconvenience to the hearing AT&T Comments at p. 5. In its view, because of their impaired. Thus, it is not apparent that there is a need to limited application, and approval by the U. S. Govern- include all credit card telephones in the definition. More- ment, private use of these telephones would have little over, such inclusion would be inconsistent with that part impact on the hearing impaired community. of the HAC Act that allows manufacturers to deplete 15. In response to AT&T's request, GTE agrees with the existing stocks of incompatible telephones." Finally, be- results, but believes private use of these telephones is cause we have no record data concerning the size of the implicit in the HAC Act. It states that "Itihe law does not extant stock of incompatible credit card telephones, we exempt such telephones only when 'used' by the Govern- cannot engage in the cost/benefit analysis required by the ment. but merely requires that they be 'approved' by the Disabled Act. 47 U.S.C. I 710(e). For these reasons we do Government for such use." Therefore, it concludes that not adopt AT&T's and NCLD-OUT's proposal to require private use of these telephones is already covered. 4 FCC Red No. I1I Federal Communications Commission Record FCC 89-137 4 FCC lied No. 11 Federal Communications Commission Record FCC 89-137 16. Discussion. The focus of the exemption is on tele- 19. Labelling. Section 68.224 currently requires that phones that are properly approved, independent of who telephone packaging contain a statement as to whether the actually uses them or where they are installed. Thus. for telephone is HAC. AT&T urges the Commission to dis- example, subsequent sale of Section 710(b)(4)(D) secure continue the telephone packaging labelling requirement. telephones in the surplus market would not convert them It feels that since the HAC Act requires nearly all tele- to HAC-subject telephones. Such telephones are designed phones to be HAC, the labelling requirement of Section not to contain fields susceptible to telecoil access. There- 68.224 is unnecessary, and its removal would reduce costs. fore, their value after use in a secure environment would AT&T notes, however, that should the Commission be- be reduced to zero were the exemption not to attach lieve that labelling is needed, it should apply only to permanently. If Government-approved secure telephones non-hearing aid compatible telephones. NCLD-OUT ac- are available to private users, we cannot conclude that knowledges the cost factor but opposes AT&T's proposal 6 they need be HAC. by the terms of the statute.' This. we to eliminate the requirement at this time because it be- believe, was not Congress' intent. Congress was concerned lieves a large volume of possible non-compatible tele- that there remain available telephones usable for conduct- phones will remain in the marketplace after the effective ing conversations for secure purposes. The resulting statu- date of the new law and the Commission's rules. If adopt- tory provision does not affect private, lawful use of such ed. it suggests. AT&T's proposal would deny consumers a telephones. We therefore do not find it necessary to means of determining whether a telephone is HAC. In the amend the proposed rule, However, these telephones alternative, NCLD-OUT urges that the Commission retain when marketed to private consumers must comply with the labelling requirement for at least three years. Sections 68.112. 68.218 and 68.224. That is, they may not 20. Discussion. On the effective date of the HAC Act. be used as "essential" telephones and their packaging there still will be a number of non-compatible telephones must contain proper instructions regarding places of use available for retail. We will continue to require that these and a notation that they are not MAC. telephones be labelled as non-HAC. AT&T requests that 17. Section 68. 316. NCLD-OUT again requests the we discontinue the labelling requirement altogether. Commission to raise the minimum acceptable field Without any labelling consumers would have no way of strength of HAC telephones by at least six decibels. The determining whether or which models are HAC. Over basis for this request is outlined in comments NCLD-OUT time, our new rules will bring about a virtually universal 1 submitted earlier in this proceeding.' NCLD-OUT claims HAC environment, which means there will be few, if any, that some telephones classified as MAC emit energy at a non-MAC telephones available for sale to the public. This level sufficient to meet the legal standard but ineffective tilts the cost/benefit analysis in favor of eliminating the in fulfilling the needs of some hearing aid users. Both labelling requirement for HAC telephones and to continu- AT&T and GTE oppose NCLD-OUT's suggestion. They ing to require the labelling only of non-HAC telephones. explain that no data are offered demonstrating that these NCLD-OUT's proposal to remove the labelling require- standards are inadequate. They note that the standards ment after three years would cause an unnecessary proce- were developed with the cooperation of the Hearing In- dural complication. Instead, we believe reducing the HAC dustries Association, an organization of hearing aid manu- labelling requirement now, with implementation of our facturers. To achieve true compatibility, they argue, new rules, will at once reduce a regulatory burden, re- requires standardization of the hearing aid design. duce unnecessary manufacturing costs and reflect the im- 18. Discussion. In the Notice at p. 1989, where we plicit expectation that a telephone purchased in the discussed other means of improving the disabled's access market place -unless otherwise noted on the packaging to telecommunications services, we observed: -is HAC. If we did not retain the packaging labelling requirement for non-compatible devices, the goal of the HAC Act that those persons with hearing impairments be There is little information on record concerning the afforded access to telephone service will be undermined. hearing aid's role in these matters. It would cer- Therefore, we reject NCLD-OUT's proposal and adopt tainly appear to play an integral role in the way the AT&T's alternative that only non-compatible telephones hearing impaired access telephone service. An as- need comply with Section 68.224. See Appendix. amended sessment of how the quality of the hearing aid re- Section 68.224. lates to the user's ability to access the telephone or 21. Refurbished Telephones. In the FNPRM, we said use telephone services is required to determine what refurbished telephones are not covered by the RAC Act. Commission action is appropriate. Further, it would According to NCLD-OUT, the House Committee on En- be helpful to know if efforts are underway to stan- ergy and Commerce authorized the Commission to im- dardize the hearing aid telecoil performance re- pose HAC requirements on refurbished telephones. See quirements, and the levels being proposed.... House Report 100-674 at 12. Based on the nation's goal of universal telephone service, NCLD-OUT urges the Com- Responses to this request provided no technical data mission to require these telephones to be HAC whether demonstrating that our current standards are inadequate or not they are HAC when submitted for refurbishment. or indicating that the matter warrants further consider- Such a requirement, in its view, would serve the public ation. The record suggests that the range of hearing aids' interest. AT&T, however, concludes the Commission is performance levels continues to be extremely broad. Al- correct in observing that the HAC Act does not apply to though the Senate Report does not address the issue, the refurbished telephones. First. it indicates NCLD-OUT's House Report contains language which directs the Com- reliance on the House Report is misplaced. AT&T relates mission to maintain the current standards of Section "that the House Bill was adopted after it was amended to 8 68.316. House Report at pp. 12 and 13. We therefore contain the text of the Senate Bill."' AT&T Reply at p. 2. conclude that the current standards are adequate. Therefore, it argues, the Senate Report represents the legislative history of the act - which provides no Commis- 4599 FCC 89-137 Federal Communications Commission Record 4 FCC Rcd No. I I FCC 89-137 Federal Communications Commission Record 4 FCC Red No. 11 sion authority to require refurbished telephones to be 25. For its part. NCLD-OUT states that while the HAC HAC. Second. it points to explicit language in the Senate Act exempts some telephones from the HAC requirement. Report and the Communications Act which excuses ap- it requires the Commission to periodically review the plication of the new law to refurbished telephones, Senate exemptions to determine whether they still serve the pub- Report at pp. 7-9 and 47 U.S.C. § 710(f). Even the House lic interest. NCLD-OUT explains that although the HAC Report. AT&T explains, under its definition of refur- Act does not specify the interval in which this review is to bished telephones, would preclude application of the occur, it recommends that the Commission do so every HAC Act in this instance. It states that "Itlo require that two years. It contends that technology changes rapidly. By refurbished phones be made hearing aid compatible is to assessing the exemptions every two years. NCLD main- require retrofitting. Like the Senate Report. the House tains that the Commission would be assuring that the Report spoke strongly against a retrofitting requirement: exemptions remain temporary. ..." AT&T Reply at p. 3. 26. Discussion. Some non-HAC telephones. such as 22. Discussion. The report of the Senate Committee on cordless telephones, which are exempted presently until Commerce, Science, and Transportation indicates that the 1991, may be directly connected to the telephone net- Committee considered application of the new law to re- work. or may be used indefinitely with an exempted furbished telephones, but concluded it would be too ex- service (such as public mobile services). The provision for pensive. At pages 4 and S of the Senate Report. the telephones used with public mobile services was crafted Committee stated that it by Congress because it was demonstrated that there was a potential for interference between hearing aids and the believes that an HAC requirement [for new tele- mobile telephone when operated in that environment, making operational compatibility impossible in that phones] would impose no additional cost on con- 2 sumers. On the other hand, retrofitting telephones case. ' See House Report at pp. 7 and 13. This potential currently in use to make them HAC or requiring level of interference does not necessarily exist in other refurbi ted telephones to be compatible appears to be environments or with other services. Thus. the exemption too costly ar this time. [Emphasis added.] provided to all devices for a given service does not auto- matically apply to those devices for all purposes. The HAC requirement is applicable to all telephones, except After finding it too costly to impose the HAC require- when employed in those situations specifically exempted ment on refurbished telephones, the Committee's report under the rules. e.g., those used with public mobile ser- implies that the issue would disappear as old telephones vices. The same telephone used with residential telephone are replaced by new ones. Senate Report at p. 5. There is services, for example, would need to be HAC. We find other language in this report which explicitly excludes this approach consistent with the intent of the HAC Act. refurbished telephones from the HAC requirement. For example, at pages 8 and 9, it is stated: "The bill does not 27. NCLD-OUT's recommendation of biennial exemp- apply to refurbished, repaired. or resold phones .... The tion review is not suffficiently supported. A more prac- bill does not require retrofitting of non-HAC telephones tical approach would entail an appraisal either sua sponte manufactured before the effective date of the legislation." or upon submission of information demonstrating that the Requiring refurbished telephones to meet the HAC stan- interference problem has been addressed and the exemp- dard would necessitate some retrofitting. Other than coin- tion is no longer warranted. Under NCLD-OUT's pro- operated and emergency telephones, the Commission posal, if there is no change in technology in two years cannot require telephones to be retrofitted to meet the which eliminates the interference problem on which the HAC standard. See HAC Act § 710(f). exemption is founded, no useful purpose would be served by a proceeding, nor would such a proceeding be a pru- dent use of Commission resources. Absent any evidence 23. The House Report on which NCLD-OUT relies is inapplicable to this point. As AT&T states, the House that the noise problem has been eliminated, we will re- view the exemption every five years to fulfill the require- adopted the Senate version of the new law and therefore it ment of the HAC Act. We will rely on this approach and is the Senate's characterization of the legislative history which is pertinent here because the two houses' views our observation of marketplace and technological changes to initiate an assessment of the continued utility differed. Accordingly, as we noted in the FNPRM, at p. 4, of the exemptions. the new law expressly does not apply to refurbished tele- t 9 phones. Nor, as demonstrated above, do we have author- 28. Other Maers. Finally, NCLD-OUT questions ity to require application. We therefore reject whether the Commission has abandoned consideration of NCLD-OUT's proposal. other issues raised in the Notice affecting services for the hearing impaired, such as interstate relay service for users 24. Exemptions. GTE points out that some telephones of Telecommunications Devices for the Deaf, amplifiers may fit more than one category of exemption, entitling for pay telephones and the establishment of an advisory such units to be exempt on multiple grounds. For exam- committee. These and other issues will be addressed in a ple, GTE states it uses cordless telephones in the provi- subsequent phase of this proceeding. sion of its air-to-ground telephone services. It states that under the MAC Act these cordless telephones are exempt because (1) they are cordless telephones (exempt until CONCLUSION AND ORDERING CLAUSES August 16, 1991), and/or (2) they are used with public mobile service. GTE therefore believes "final rules should 29. The new rules contained herein have been analyzed recognize that equipment may properly fit more that one with respect to the Paperwork Reduction Act of 1980 and category. If the equipment is not categorically excluded by found to impose a new or modified information collec- the exemption... then the equipment may still be exempt tion requirement on the public. Implementation of these based upon the application for which it is used...." GTE new rules will be subject to approval by the Office of Comments at pp. 4 and 5. Management and Budget as prescribed by the Act. 4 FCC Red No. I1I Federal Communications Commission Record FCC 89-137 4FCC Red No. 11 Federal Communications Commission Record FCC 89.137 30. For the purposes of the Regulatory Flexibility Act. 5 (a)(1) Except for telephones used with public mobile U.S.C. § 604. the Commission certifies that this report services, telephones used with private radio services. and and order will not have a substantial economic impact on cordless and secure telephones, every telephone manufac- a significant number of entities. Where alternative resolu- tured in the United States (other than for export) or tions were available, we have chosen the least costly alter- imported for use in the United States after August 16, native and in some instances have eliminated unnecessary 1989. must be hearing aid compatible. Every cordless requirements. This order fulfills the instructions of Con- telephone manufactured in the United States (other than gress described in the HAC Act. for export) or imported into the United States after Au- 31. Accordingly, IT IS ORDERED, pursuant to Sec- gust 16, 1991. must be hearing aid compatible. tions I and 4(i) of the Communications Act, 47 U.S.C. §§ (2) Except as provided in § 68.112(c)l(1) and (4), every 151 and 154(i), and the Hearing Aid Compatibility Act of telephone listed in § 68.112 shall be hearing aid-compati- 1988, Public Law 100-394, that Part 68 of the Commis- ble. sion's Rules and Regulations is amended as set forth in (3) A telephone is hearing aid-compatible if it provides the attached appendix. internal means for effective use with hearing aids that are 32. IT IS FURTHER ORDERED. that the Secretary designed to be compatible with telephones which meet shall cause a copy of this order to be printed in the established technical standards for hearing aid compatibil- Federal Register and shall send a copy to the Counsel for ity. Advocacy of the Small Business Administration in accor- (4) The Commission shall revoke or otherwise limit the dance with Section 603(a) of the Regulatory Flexibility exemptions of subsection (a)(l) of this section for tele- Act (5 U.S.C. § 601 et. seq., 1980). phones used with public mobile services or telephones 33. IT IS FURTHER ORDERED. that the rule amend- used with private radio services if it determines that (a) ments adopted herein shall become effective August 17. such revocation or limitation is in the public interest: (b) 1989. continuation of the exemption without such revocation or limitation would have an adverse effect on hearing-im- FEDERAL COMMUNICATIONS COMMISSION paired individuals: (c) compliance with the requirements of Section 68.4(a)(1) is technologically feasible for the telephones to which the exemption applies: and (d) com- pliance with the requirements of Section 68.4(a)(1) would not increase costs to such an extent that the telephones to Donna R. Searcy which the exemption applies could not be successfully marketed. Secretary 3. Section 68.5 is added to Part 68 to read as follows: APPENDIX § 68.5 Waivers. Part 68 of the Commission's Rules and Regulations (Chapter I of Title 47 of the Code of Federal Regulations, The Commission may, upon the application of any Part 68) is amended as follows: interested person. initiate a proceeding to waive the re- quirements of Section 68.4(a)(1) with respect to new tele- 1. Section 68.3 is amended to add the following defini- phones, or telephones associated with a new technology tions: or service. The Commission shall not grant such a waiver unless it determines. on the basis of evidence in the record of such proceeding, that such telephones, or such § 68.3. Definitions. technology or service, are in the public interest, and that (A) compliance with the requirements of Section Essential Telephones: Means only coin-,operated tele- 68.4(a)(1) is technologically infeasible. or (B) compliance phones, telephones provided for emergency use, and other with such requirements would increase the costs of the telephones frequently needed for use by persons using telephones, or of the technology or service, to such an such hearing aids. extent that such telephones, technology, or service could Public Mobile Services: Means air-to-ground not be successfully marketed. In any proceeding under radiotelephone services, cellular radio telecommunica- this section to grant a waiver from the requirements of tions services, offshore radio, rural radio service, public Section 68.4(a)(1), the Commission shall consider the ef- land mobile telephone service, and other common carrier fect on hearing-impaired individuals of granting the waiv- radio communication services covered by Part 22 of Title er. The Commission shall periodically review and 47 of the Code of Federal Regulations. determine the continuing need for any waiver granted Private Radio Services: Means private land mobile radio pursuant to this section. services and other communications services characterized by the Commission in its rules as private radio services. 4. Section 68.224 is revised to read as follows: Secure Telephones: Means telephones that are approved by the United States Government for the transmission of § 68.224 Notice of Non - hearing aid compatibility. classified or sensitive voice communications. Every non-hearing aid compatible telephone offered for 2. Section 68.4 is revised to read as follows: sale to the public on or after August 17, 1989, whether previously-registered, newly registered or refurbished § 68. 4 Hearing aid - compatible telephones. shall: FCC 89-137 Federal Communications Commission Record 4 FCC Red No. 11 (a) Contain in a conspicuous location on the surface of Inc.. Telecommunications for the Deaf. Inc., and Minnesota its packaging a statement that the telephone is not hearing Telecommunications Access for Communicatively Impaired Per- aid-compatible. as is defined in § 68.4(a)(3) of these rules. sons (collectively NCLD-OUT): and the United States Tele- or if offered for sale without a surrounding package, shall phone Association (USTA). Reply comments were filed by be affixed with a written statement that the telephone is AT&T: GTE: NCLD-OUT and the North American Telecom- not hearing aid-compatible. as defined in § 68.4(a)(3) of munications Association (NATA). these rules: and 9 GTE offers similar comments. GTE Comments at pp. 2 and (b) Be accompanied by instructions in accordance with 3. See Appendix for entire rule language as adopted in this § 68.218(b)(5) of the rules. proceeding. 10 See Access to Telecommunications Equipment and services FOOTNOTES by the Hearing Impaired and Other Disabled Persons, 3 FCC Rcd 1982 (1988). "Essential Telephones" include only coin-operated tele- It NCLD-OUT favors expansion of the definition of "essen- phones, telephones provided for emergency use, and other tele- tial" telephones and requests that the definition include tele- phones frequently needed for use by persons using hearing aids phones in hospitals, hotels and motels. NCLD-OUT Comments specially designed for telephone use. 47 U.S.C. 0 710(b). at p. 3. 2 Access to Telecommunications Equipment by the Hearing 12 The Senate Report at p. II states that "'[eissential" tele- Impaired and Other Disabled Persons. Order. CC Docket No. phones are defined in this new section exactly as they are 83-427. 49 Fed. Reg. 1352 (January 11. 1984). modified. 49 Fed. defined in the 1982 Act" (Disabled Act). Reg. 19666 (May 9, 1984), further modified. FCC 84-382 (released 13 Our current definition of coin-operated telephones reflects August 13. 1984) (Hearing Impaired proceeding): 47 C.F.R. Part the language contained in the Disabled Act. See 47 C.F.R. 0 64. subpart F, Sections 68.4. 68.112. 68.218. 68.224 and 68.316. 68. 12(c)(I). 3 Most external hearing aids have a built-in telephone pick-up. 14See para. 23, infra. or "telecoil." which is activated by a switch on the hearing aid. Is We note too that Congress concluded that retrofitting exist- When this switch is placed in the "telephone" position, the microphone is turned off and the hearing aid can be used at full ing non-compatible telephones to be HAC is too costly. It spe- volume without feedback and with minimal background noise. cifically stated that the HAC Act is inapplicable to these These hearing aids are activated by the magnetic field generated telephones at this time: "The Committee believes that the bene- by telephone handsets. In-the-ear hearing aids generally rely on fits of requiring all telephones to be HAC at this time are audio amplification rather than electromagnetic coupling (and a outweighed by [retrofitting] costs." Senate Report at p. 5. telecoil) to provide the wearer with telephone access. Unless i6 Generally, these telephones are not available for public use. otherwise indicated. references to hearing aid compatible tele- The Government normally contracts with a manufacturer for a phones refer to equipment which is compatible with a telecoil specifically designed telephone for a governmental application. type hearing aid. See House Report No. 97-888, 97th Cong.. 2d Such telephoaes are normally limited to use by the Govern- Sess.. at 8. ment and its outside private contractors for discussion of sen- ' See Telecommunications Services for the Deaf and Hearing sitive matters. Therefore, we anticipate that only a small Impaired. Notice of Inquiry. CC Docket No. 78-50. 667 FCC 2d quantity of these telephones will enter the public market. 1602 (1978). terminated. FCC 83-177 (released May 3. 1983). 17 Comments of NCLD-OUT filed July 26. 1988. 5 See note 2 supra. 1s AT&T Reply at p. 2. citing [19881 U.S. Code Cong. and 6 The House Report accompanying the Disabled Act states: Adm. News 1345. t Senate Report at pp. 7-8. The reported bill does not require all telephones to be 20 See Appendix. amended Section 68.4. compatible with hearing aids. Rather, the bill preserves consumer choice while ensuring that the needs of the hearing impaired are fully served. The legislation focuses on those "essential telephones" to which the hearing im- paired must have access if they are to function effectively in modern society. Companies are free to manufacture and to market non-compatible telephones, and businesses and consumers may purchase these instruments for use by persons who do not have hearing impairments. House Report No. 97-888, 97th Cong., 2d Sess.,at 9. 74 FCC Rcd 2250 (1989). Comments were filed by the American Telephone and Tele- graph Company (AT&T): BellSouth Corporation: GTE Service Corporation (GTE); the National Center for Law and the DeaL the Organization for Use of the Telephone. Inc.. the Maryland Office of People's Counsel, the New York League for the Hard of Hearing. the Hearing and Speech Agency of Metropolitan Baltimore, Inc.. the Maryland Governor's Commission on Hear- ing Impairments, the Maryland Governor's Office for Handi- capped Individuals, Telecommunications Exchange for the Deaf. 4602