FCC 90-133 Federal Communications Commission Record 5 FCC Red No. 12 this proposal that Congress did not intend for the Com- Before the mission to require that all telephones be hearing aid Federal Communications Commission compatible. Several months later the Hearing Aid Com- Washington, D.C. 20554 patibility Act of 1988, Public Law 100-394 (HAC Act) ' became law. That Act requires that nearly all telephones manufactured or imported for sale in this country after August 16, 1989, be hearing aid compatible. CC Docket No. 87-124 3. In the Order, the Commission decided that because Congress had enacted a law requiring nearly all future In the Matter of telephones to be compatible with hearing aids, redefining "essential" telephones to include workplace telephones in Access to Telecommunications common areas was unwarranted. The Commission noted the difficulty of enforcing a rule defining common areas. Equipment and Services by The Commission found Congress intended that, over time, the Hearing Impaired nearly all workplace telephones would be replaced with and Other Disabled Persons ones compatible with hearing aids. Order, 4 FCC Rcd at 4598. 4. With regard to credit card telephones, the Commis- MEMORANDUM OPINION AND ORDER AND sion observed that under existing Commission rules tele- FURTHER NOTICE OF PROPOSED RULE MAKING phones must be HAC unless a HAC coin operated telephone is "nearby and readily available." 4 It also noted Adopted: April 12, 1990; Released: June 7, 1990 that the HAC Act did not require it to expand the defini- tion of "essential" telephones to include credit card-op- By the Commission: erated units. In fact. the Commission concluded that the applicable legislative history was critical of the defini- 1.The Organization for Use of the Telephone, Inc., the tional approach to improving access by the hearing im- Maryland Office of People's Counsel, the National Center paired to telephone services that made HAC features for Law and the Deaf, the New York League for the Hard dependent on the location of the telephone. It further of Hearing, the Hearing and Speech Agency of Metropoli- explained that its Part 68 records demonstrate there are tan Baltimore, Inc., the Maryland Governor's Office for few, if any, non-HAC credit card telephones available for Handicapped Individuals, Telecommunications Exchange attachment to the telephone network. The Commission for the Deaf, Inc., Telecommunications for the Deaf. Inc., concluded that non-HAC credit card telephones, if, in- and Minnesota Telecommunications Access for Commu- deed, any are in operation, will be replaced by HAC nicatively Impaired Persons (collectively Petitioners) have models over time. Id. at 4598. filed a petition for partial reconsideration of the Commis- 5. In discussing the matter of raising the minimum sion's First Report and Order (Order) in CC Docket No. acceptable field strength of HAC telephones, the Order 87-124, 4 FCC Rcd 4596 (1989). Petitioners ask that the stated that no party provided any technical data dem- Commission reconsider the decision not to expand the onstrating that the current standards are inadequate or definition of "essential telephones" to include workplace that the matter warrants further consideration. In addi- telephones in common areas and all credit card-operated tion, the Commission noted that Congress, in considering telephones, as the Commission initially had proposed. the HAC Act, did not mandate any changes in the stan- Petitioners also ask that the Commission take certain dards. The Commission therefore concluded that the cur- additional actions. These include 1) requiring that all rent standards were sufficient to meet the needs of the workplace telephones be hearing aid compatible; 2) re- hearing impaired. Id. at 4599. quiring that all hospital, hotel and motel telephones be hearing aid compatible; and 3) requiring that the minimal acceptable field strength of hearing aid compatible (HAC) U. COMMENTS AND DISCUSSION telephones be increased. The Bell Atlantic Telephone 6. The Rules. Petitioners contend that the Commission Companies (Bell Atlantic), GTE Service Corporation erred in its decision not to expand the definition of (GTE), and the User Premises Equipment Division of the "essential telephones" to include all credit card tele- Telecommunications Industry Association (TIA/UPED) phones and all telephones in common areas in the oppose the petition. Reply comments were filed by the workplace. Petitioners charge the legislative history of the North American Telecommunications Association HAC Act anticipated that the Commission would adopt (NATA) and Petitioners. its proposed expanded definition of "essential telephones." They argue that Congress adopted a two prong approach for expanding the availability of HAC telephones. First, BACKGROUND I. the enactment of the HAC Act was intended to lead to 2. The background of the instant proceeding is stated in near universal HAC telephones over time. Second, by the Order. Very briefly, the Disabled Act of 1982, Public maintaining the requirement that HAC telephones be Law 97-410,' required. inter alia, that all telephones placed in essential locations, Congress was ensuring that deemed "essential" be compatible with hearing aids. In the hearing impaired would have access to the telephone 1988, responding to comments filed in an earlier phase of network. this proceeding, the Commission proposed to expand the 7. Additionally, Petitioners accuse the Commission of definition of "essential telephones" to include all employing inconsistent reasoning in deciding not to ex- workplace telephones located in common areas and all 2 pand the HAC requirements. On the one hand, Petition- credit card telephones. The Commission noted in making ers argue, the Commission contended that a rule based on 3434 5 FCC Red No. 12 Federal Communications Commission Record FCC 90-133 S FCC Red No. 12 Federal Communications Commission Record FCC 90-133 "essential telephone" location instead of type is too dif- 12. Discussion. On August 16, 1988, the HAC Act was ficult to enforce. On the other hand, they continue, the enacted to require nearly all telephones imported or man- Commission insisted on continuing its existing location- ufactured for sale in this country a year after its enact- based definitions for work station and credit card tele- ment to be HAC. New Section 710(b)(1) (47 U.S.C. § phones. Petitioners argue in addition that there is no basis 610(b)(1)) states: for distinguishing between telephones activated by coins and those activated by credit cards. Hearing impaired Except as provided in paragraphs (2) and (3), the just as other persons need access to credit card telephones Commission shall require that- persons do. 8. Finally, Petitioners argue: (A) all essential telephones, and It is also unreasonable to ignore the obvious fact (B) all telephones manufactured in the United that hotel, motel, and hospital phones frequently States (other than for export) more than one year serve emergency purposes. All such phones should after the date of enactment of the Hearing Aid be HAC, whether existing or new. The costs for Compatibility Act of 1988 or imported for use in retrofitting these especially vital telephones could be the United States more than one year after such minimized by allowing a reasonable phase-in pe- date, provide internal means for effective use with riod, agreed upon by all interested parties, including hearing aids that are designed to be compatible with telephones consumers. which meet established technical stan- dards for hearing aid compatibility. Petition at p. 5. To be consistent, Petitioners urge, the Commission should require all workplace and credit card The new law forbids the Commission to require telephones to be HAC, which they contend would be retrofitting of existing telephones, unless it decides that consistent with congressional intent. See Public Law such non-compatible telephones are essential telephones 100-394, supra, n. 2. In their view, the Commission has a for the hearing impaired, provided for emergency use. 47 statutory duty to establish regulations which will ensure U.S.C. § 610(0. Congress expressly noted that its action would not result in an immediate the hearing impaired' reasonable access to telephone ser- universal HAC tele- vices. See 47 U.S.C. § 610(a). phone environment, but the HAC Act does not preclude the Commission from adopting additional regulations de- 9. In its opposition, GTE states that the Commission signed to increase access to telephone service by the hear- cannot provide the relief Petitioners seek. According to ing impaired. The 1988 amendments did not change the GTE, laws currently enacted do not permit the Commis- preexisting provisions of Section 710(a) which provide the sion to require retrofitting of existing telephones, other Commission authority to establish such additional regula- than coin-operated and emergency telephones. In GTE's tions, provided it "consider the costs and benefits to all view, to include other telephones in this group, the Com- telephone users, including persons with and without hear- mission would have to determine that such telephones are 5 ing impairments." 47 U.S.C. § 610(e). See also H.R. Rept. coin-operated or emergency telephones. No. 888, 97th Cong., 2d Sess. 8 (1982). The Commission 10. TIA/UPED also takes exception to Petitioners' re- is not precluded from adding new categories of emergency quest. It argues that the passage of the HAC Act mooted telephones. Indeed. Section 710(f) provides that the Com- the Commission's proposal in the NPRM and that the mission shall periodically review the regulations estab- Commission's action in the Order complied with the HAC lished pursuant to Section 710.' Act. TIAJUPED argues that current laws forbid the Com- 13. Upon reconsidering this matter we believe mission from requiring retrofitting of "non-essential" tele- petitioners are correct that all credit card telephones and phones. TIA/UPED states that if Petitioners are seeking an telephones in common areas of the workplace should be evolutionary change in credit card and workplace tele- hearing aid compatible and treated as essential telephones phones the HAC Act and the Commission's Order are provided for emergency use. In reaching this conclusion designed to achieve that intent. It therefore concludes that we observe, first, that the Order did not fully consider the reconsideration of the matter is unwarranted. potential benefits of this treatment. The use of credit card 11. In reply, Petitioners challenge what they believe to telephones in our society has proliferated to the point that be GTE and TIA/UPED's position regarding the Commis- they are a widely used means of communication. These sion's authority to reclassify other telephones as "essen- telephones should be available for emergency use by per- tial." According to Petitioners, ". . . the Commission can sons with impaired hearing. It is impossible to determine designate .. .telephones provided for emergency use as when and where an emergency will arise, and when it 'essential' and require that they be retrofitted to be hear- does, whether a HAC credit card telephone will be acces- ing aid compatible . . . See 47 U.S.C. § 610(f)." Petition- sible for a person with impaired hearing. Moreover, it is ers' Reply at p. 1. They also contend that the Commission not clear the availability of a coin telephone nearby is an can designate telephones as frequently needed for use by adequate substitute for a credit card telephone, because persons using hearing aids and classify them as "essential" 6 not all coin services accept credit card payment. Both on that basis. See 47 U.S.C. § 610(b). As the HAC Act traditional telephone companies and private service pro- allows the use of existing and future Commission exempt- viders have increased the provision of access to commu- ed non-HAC telephones, they urge the Commission to nication services via credit card telephones. Hearing ensure that only HAC telephones be employed at sites of impaired persons' access to such stations should not be frequently needed telephones in the future. restricted simply because of their disability. We also be- lieve that precluding the hearing impaired persons' access to credit card telephones generally impedes their ability to perform as other members of society and adds to their FCC 90-133 Federal Communications Commission Record 5 FCC Red No. 12 FCC 90-133 Federal Communications Commission Record 5 FCC Red No. 12 burden as they attempt to compete in the employment Even among "frequently needed" telephones, not all need market. Increasing the number of telephones usable by be replaced by HAC telephones. For example, if at least the hearing impaired means they can not only more 10 percent of hotel or motel telephones are HAC, newly readily deal with emergencies, but also more readily travel purchased telephones need not be (47 C.F.R § throughout this country and participate fully in the 68.112(c)(4)). " marketplace. 17. Our tentative conclusion is that it now is appro- 14. Second, while the potential benefits of ensuring that priate to propose that all but one category of essential all credit card telephones are hearing aid compatible are telephones identified as frequently needed be treated as significant, the costs of doing so appear to be small. As provided for emergency use and therefore be made hear- noted in the Order, our Part 68 records suggest there are ing aid compatible by May 1, 1992. We also tentatively few, if any, n6n-HAC credit card telephones available for conclude that all workplace telephones should be made marketing. Nor is it certain that all of the telephones not hearing aid compatible. First, as a practical matter, we do listed as compatible are in fact incompatible. Most of not believe reliable judgments can be made as to which of these devices were registered before the HAC requirement these telephones will or will not be in a place "where a was instituted, and there is no evidence in the record that hearing impaired person might be isolated in the event of any of these still are in use. In any event, we do not an emergency." Note 7, supra. Thus, we believe they foresee substantial expenditures being incurred to meet a properly may be treated as emergency telephones required HAC requirement. According to the Senate Report, the to be retrofitted or replaced as of May 1, 1992. Second, cost of retrofitting a telephone unit for HAC is $1.50." although the HAC Act does not suspend the cost/benefit With the limited number of instruments we anticipate to analysis requirement of Section 710(e) of the Act, its be affected by this rule change, the costs to society of purpose was to expand access by the hearing impaired. limited or foreclosed credit card-operated telephone use We believe our proposal both serves the emergency needs by the hearing impaired exceed the cost of retrofitting or of the hearing impaired and expands their access to tele- replacing telephones. Moreover, the impact of this rule is phone services generally. further reduced in that service providers will be given one 18. As to workplace telephones, the rules currently year in which to conform. See Appendix A. provide only that each hearing impaired employee's pri- 15. With respect to common area workplace telephones. mary telephone should be HAC. That requirement would we conclude that the cost to employers would not be appear to restrict the movement of hearing impaired per- substantial in order to comply with Petitioners' request. sons in the work environment, thereby reducing their The benefits are generally the same identified for credit effectiveness as employees and potentially limiting their card telephones. Because hearing impaired employees will upwafd mobility, and could be life threatening in an use common areas, these telephones are appropriately emergency situation. Creating a work environment in treated as "emergency" in that they may be needed during which the hearing impaired can be more safe and produc- an emergency and even for frequent use. Although the tive improves their output and independence and pro- Order is correct that eventually all such telephones will be vides hearing impaired employees the same access to HAC, the public interest is best served by advancing that telephones enjoyed by other employees. Moreover, estab- time. The costs of this approach should be small, because lishing a rule for all workplace telephones -- subject to such telephones are likely to constitute only a small per- the limited exemptions established in the HAC Act of centage of all telephones in the workplace and most prob- 1988 - merely has the effect of advancing the time when ably are already hearing aid compatible.' Based on the such telephones will be RAC. We now propose to estab- record in this proceeding, we are able to find that the lish that time as May 1, 1992. See Appendix B. This benefits of adopting the common area requirement should provide adequate transition time for businesses to outweigh the costs. Some commenters sought more speci- comply. Commenters should provide information regard- ficity with respect to the term "common area." The term ing the costs and benefits of this approach. is intended to cover such places as libraries, cafeterias, 19. Regarding Petitioners' request for a rule requiring conference rooms and other areas which are equipped all hotel, motel and hospital telephones to be HAC. we with telephones and where employees are reasonably ex- note first that the current rules address telephones in pected to congregate. See Appendix A. While it would be hospitals and other confined settings. If no other emer- impossible to specifically delineate all such areas exhaus- gency signalling device is available, telephones in these tively, employers should resolve questions in favor of confined settings are "emergency use" telephones and ensuring compliance. have been HAC since January 1, 1985. Where another ° 16. Further Notice of Proposed Rule Making." Our cur- signalling device is available, such telephones are "fre- rent rules consist of a complex web of requirements. They quently needed" and all new installations since January 1, attempt to anticipate precisely which telephones will be 1985, have been HAC. See Subsections 68.112(b)(3) and necessary for an emergency (e.g., telephones in subway (c)(5). We believe there are few, if any, non HAC tele- tunnels, as well as prisons and hospital rooms that do not phones in the hospital environment, so the costs of mak- have an alternative signalling device available (47 C.F.R. § ing all such telephones HAC is small. The benefits of 68.112(b)(1) - (3)) and have required such telephones to guaranteeing access in this environment cannot be ques- be hearing aid compatible since 1985. They also attempt tioned, and will remove definitional issues of what are to identify those telephones that, while considered "essen- emergency signalling devices and whether they are ade- tial," are only "frequently needed" by the hearing im- quate. We therefore propose that all hospital telephones paired (eg., their work station telephones, telephones in bereuired to be hearing aid compatible by May 1, lobbies or stores, and credit card telephones near pay 1992.' The rules also require that at least ten percent of telephones (47 C.F.R. § 68.112(c)) and therefore are not all hotel and motel rooms be equipped with a HAC required to be retrofitted as of 1985 but, when replaced, telephone upon replacement. Congress has cited evidence must be replaced with hearing aid compatible telephones. that "many hotel and motel residents have trouble finding 5 FCC Red No. 12 Federal Communications Commission Record FCC 90-133 3 HAC telephones."' This situation is intolerable given the entation requirements. Most hearing aid users possibility of emergencies. We propose that all hotel and would be unable to detect these factors, and might motel telephones also be required to be hearing aid com- falsely assume that they were using "compatible" patible by May 1, 1992. See Appendix B. The benefits of telephones which for some reason were not "loud" wider access, especially emergency access, as well as great- enough. er mobility for the hearing impaired, can be readily seen. However, we request commenters to provide information TIA/UPED Opposition at p. 3, n. 4. regarding costs and benefits. 24. Discussion. The Order found that the record con- 20. The only remaining essential telephones not treated tained no evidence that would support a change in the as emergency telephones under our proposal are those in current standards or warrant further consideration of the lobbies, stores and public transportation terminals used proposal to raise the field strength standard. Order, 4 FCC for internal, or closed circuit, communications. Examples Rcd at 4599. Petitioners have not provided any additional include telephones in stores used to order merchandise information demonstrating that an increase of six decibels and telephones in public transportation terminals used to is warranted. They fail to show that any specific problem call taxis or to reserve rental automobiles. Although Peti- of HAC is a result of the current field strength standards tioners are correct that we may require retrofitting of being too low. There are many possible reasons why emergency telephones, that discretion is not unbounded. hearing aid users experience hearing difficulties when Closed circuit telephones of this type are not useful in using a telephone, ranging from a poorly designed hearing emergency situations because, unlike other telephones aid to a faulty line. Moreover, there would appear to be considered here, they cannot be used to contact emer- substantial costs involved in adopting a new field strength gency personnel directly. Also unlike some of the other standard. Petitioners must carry the burden of demon- categories of telephones, many closed circuit service tele- strating the benefits of their proposal in light of the costs phones are likely to be HAC. given the economic incen- it would impose. tives providers have to encourage the patronage of the 25. Other matters. Other issues Petitioners raise outside hearing impaired. This may be why Petitioners did not the matters they seek reconsidered, e.g., a payphone am- propose they be retrofitted. In any event, we cannot con- plification requirement, and interstate relay service for clude the benefits of according closed circuit telephones users of Telecommunications Devices for the Deaf emergency treatment outweigh the costs. See 47 C.F.R. § (TDDs), are being addressed in our proceeding examining 68.112(c)(3). the establishment of an interstate TDD relay system, Or- 21. Section 68. 316. According to Petitioners, just as it der Completing Inquiry and Providing Further Notice of was unreasonable for the Commission not to expand the Proposed Rule Making, 4 FCC Rcd 6214 (1989). definition of "essential telephones." it was unreasonable not to raise the magnetic field strength standard tele- phones must meet to be HAC. Petitioners explain that IH. CONCLUSION consumers' contribution to the current hearing aid com- 26. Petitioners' request that the Commission reconsider patibility standards was based on scant experience and its prior order and require that all credit card and com- minimal technical expertise. After several years of exper- mon area telephones be made hearing aid compatible is ience with the present standards, consumers find that the granted. We believe substantial benefits will result, while magnetic field strength is too low, and should be raised the costs of retrofitting or replacing sooner than otherwise six decibels, Petitioners assert. would be the case should be small. Petitioners' request 22. GTE believes that the current field strength stan- that we go beyond the initial proposal to reach all dard is sufficient to meet the needs of hearing aid users. It workplace, hospital, hotel and motel telephones also is feels that Petitioners have not provided adequate support granted to the extent we propose to adopt a rule that for their requested change."A It notes that information would treat nearly all essential telephones as emergency. Petitioners rely on does not demonstrate whether the The effect of the rule would be to advance the time at telephones complained of were HAC or met the HAC which these telephones will be HAC. Petitioners have not technical standards, or whether the hearing aids were requested, and we do not believe, that "closed circuit" designed to meet the HAC standards. GTE states that if telephones should be accorded emergency treatment. Par- hearing aids incompatible with telephones are being sold, ties commenting on the proposals made here should this problem should be remedied by consumers not pur- evaluate the costs and benefits. chasing such hearing aids, or by hearing aid manufactur- ers building compatible ones. 23. For its part, TIA/UPED states that some of the PAPERWORK REDUCTION ACT problems hearing aid users may be encountering could 27. The proposal contained herein has been analyzed stem from poor telephone connections, a condition which with respect to the Paperwork Reduction Act of 1980 and even hearing individuals would find unsatisfactory. has been found to contain no new or modified form, TIA/UPED also states that information collection and/or record keeping, labeling, disclosure, or record retention requirements; and will not Hearing aid compatibility is not a black or white increase burden hours imposed on the public. proposition. The standards require, in addition to a specific field strength, field shape factors and fre- quency response. Most telephones which are rated INITIAL REGULATORY FLEXIBILITY ANALYSIS as not hearing aid compatible are capable of provid- 28. In accordance with the Regulatory Flexibility Act of ing some sort of output through the magnetic 1980, 5 U.S.C. § 601 et seq., the Commission issues the pickup (telecoil) of a hearing aid, but may not following initial regulatory flexibility analysis with regard Orov;dl, the pret.cribed frequency response or ori- to the Further Notice of Proposed Rule Making: FCC 90-133 Federal Communications Commission Record 5 FCC Red No. 12 FCC 90.133 Federal Communications Commission Record 5 FCC Red No. 12 A. Action Contemplated and Reason for Action. I. Need and purpose of this action: (a) By this Further Notice of Proposed Rule Making, The regulations affected by this Memorandum Opinion the Commission seeks to elicit comment on a proposal to and Order were required by the Hearing Aid Compatibil- change its rules to provide the hearing impaired with ity Act of 1988. On reexamination of the rules adopted greater access to telecommunications services. pursuant to that Act, the Commission finds that certain amendments are necessary to fulfill the goals established B. Objective. by Congress. (a) The objective of this Rule Making is to ensure that the hearing impaired have reasonable access to telecom- I. Summary of Issues raised by the public comments In munications services. response to the Initial Regulatory Flexibility Analysis: No additional comments were filed in response to the C. Legal Basis. initial Regulatory Flexibility Analysis. (a) The legal authority for this action is contained in Sections 1, 4(i) and (j) and 710 of the Communications III. Significant alternatives considered and rejected: Act, 47 U.S.C. §§ 151, 154(i) and (j) and 610. The Commission considered the alternatives raised by the parties in this proceeding and considered all the time- D. Description, Potential Impact and Number of Small ly filed comments directed to those issues. After carefully Entities Affected. weighing all apects of this proceeding, the Commission (a) The effect of the proposed rule will depend upon has adopted the most reasonable course of action under whether hospitals, hotels, motels and employers have al- the mandate of the Hearing Aid Compatibility Act and ready installed hearing aid compatible telephones in the Communications Act, as amended. rooms or the workplace, respectively. The overall eco- nomic impact of the proposed rule should be small. It is believed that most employers and hospitals have pur- EX PARTE PRESENTATIONS chased HAC telephones or will be acquiring new tele- 31. For purposes of this non-restricted notice and com- phones in the near future. Because the rules currently ment Rule Making proceeding, members of the public are require manufacture of exclusively HAC telephones for advised that ex pare presentations are permitted except retail sale in the domestic market, buyers' selections of during the Sunshine Agenda period. See generally Section telephones now are limited almost entirely to HAC tele- 1.1206(a). The Sunshine Agenda period is the period of phones. The proposed rule's effect on hotel and motel time which commences with the release of a public notice owners may be more dramatic as they are currently only that a matter has been placed on the Sunshine Agenda required to equip 10 percent of their rooms with HAC and terminates when the Commission (1) releases the text telephones. However, most telephones that they have and of a decision or order in the matter; (2) issues a public are continuing to purchase are HAC, and the anticipated notice stating that the matter has been deleted from the benefits of the proposed rule are expected to outweigh the Sunshine Agenda; or (3) issues a public notice stating that additional costs. the matter has been returned to the staff for further consideration, whichever occurs first. Section 1.1202(0. E. Recording, Recordkeeplng, and Other Compliance Re- During the Sunshine Agenda period, no presentations, ex quirements. parte or otherwise, are permitted unless specifically re- quested by the Commission or staff for the clarification or (a) No additional burdens anticipated. adduction of evidence or the resolution of issues in the proceeding. Section 1.1203. F. Federal Rules that overlap, Duplicate or Conflict with 32. In general, an ex pane presentation is any presenta- these Proposed Rules. tion directed to the merits or outcome of the proceeding (a) None. made to decision-making personnel which (1) if written, is not served on the parties to the proceeding, or (2), if G. Any Significant Alternatives to Minimize the Impact oral, is made without advance notice to the parties to the on Small Entities. proceeding and without opportunity for them to be (a) None. present. Section 1.1202(b). Any person who makes or submits a written ex pane presentation shall provide on 29. Written comments are requested on the IRFA. the same day it is submitted two copies of same under These comments must be filed in accordance with the separate cover to the Commission's Secretary for inclu- same filing deadlines as comments on the rest of the sion in the public record. The presentation (as well as any Further Notice of Proposed Rule Making, but they must transmittal letter) must clearly indicate on its face the have a separate and distinct heading designating them as docket number of the particular proceeding(s) to which it responses to the regulatory flexibility analysis. relates and the fact that two copies of it have been submit- ted to the Secretary, and must be labeled or captioned as an ex pane presentation. FINAL REGULATORY FLEXIBILITY ANALYSIS 33. Any person who in making an oral ex pare pre- 30. Pursuant to the Regulatory Flexibility Act of 1980, sentation presents data or arguments not already reflected the Commission's final analysis with regard to the Memo- in that person's written comments, memoranda, or other randum Opinion and Order is as follows: previous filings in that proceeding shall provide on the day of the oral presentation an original and one copy of a written memorandum to the Secretary (with a copy to the Commissioner or staff member involved) which summa- S FCC Red No. 12 Federal Communications Commission Record FCC 90-133 rizes the data and arguments. The memorandum (as well APPENDIX A as any transmittal letter) must clearly indicate on its face Part 68 of the Commission's Rules and Regulations the docket number of the particular proceeding and the (Chapter I of Title 47 of the Code of Federal Regulations, fact that an original and one copy of it have been submit- Part 68) is amended as follows: ted to the Secretary, and must be labeled or captioned as 1. The authority citation for Part 68, continues to read ex pane an presentation, Section 1.1206. as follows: Authority: Sees. 4, 5, 303, 48 Stat., as amended, 1066, ORDERING CLAUSES 1068, 1082; (47 U. S. C. 154, 155, 303). 34. Pursuant to applicable procedures set forth in 1.415 and 1.419 of the Commission's Rules, interested parties 2. Section 68.4 is amended by revising paragraph (a)(2) may file comments on or before August 1, 1990, and to read as follows: reply comments on or before September 7, 1990. All relevant and timely comments will be considered by the § 68.4 Hearing aId-compatble telephones. Commission before final action is taken in this proceed- ing. To file formally in this proceeding, participants must file an original and four copies of all comments, reply comments, and supporting comments. If participants want each Commissioner to receive a personal copy of their (a)(2) Unless otherwise stated and except as provided in comments, an original plus nine copies must be filed. Section 68.112(c)(3), every telephone installed on or after Comments and reply comments should be sent to Office January 1, 1985, which is subject to Section 68.112 must of the Secretary, Federal Communications Commission, be hearing aid-compatible. Washington, D.C. 20554. Comments and reply comments will be available for public inspection during regular business hours in the Dockets Reference Room (Room 239) of the Federal Communications Commission, 1919 M Street, N.W., Washington, D.C. 3. Section 68.112 is amended by removing paragraph 35. Accordingly, pursuant to Sections 1, 4(i) and (j) and c(1); redesignating paragraphs (c)(2), (3), (4) and (5) as 710 of the Communications Act of 1934, as amended, 47 (c)(1), (2), (3) and (4); adding paragraph b(4) and revising U.S.C. §§ 151, 154(i) and (j) and 610, IT IS ORDERED paragraph b(I) to read as follows: that a Further Notice of Proposed Rule Making IS INSTITUTED. § 68. 112 Hearing aid-compatibilIty. 36. IT IS FURTHER ORDERED, pursuant to Sections 1, 4(i) and 710 of the Communications Act, 47 U.S.C. §§ 151, 154(i) and 610, that Part 68 of the Commission's Rules and Regulations is amended as set forth in Appen- dix A below. (b) Emergency use telephones. Telephones "provided 37. IT IS FURTHER ORDERED, that the Secretary for emergency use" include the following: shall cause summaries of this Order and this Further Notice of Proposed Rule Making to be printed in the (1) Telephones in places where a person with im- Federal Register and shall send a copy to the Chief Coun- paired hearing might be isolated in an emergency, sel for Advocacy of the Small Business Administration in including, but not limited to, elevators, automobile, accordance with Section 603(a) of the Regulatory Flexibil- railroad or subway tunnels, highways and common ity Act (5 U.S.C. § 601 et seq.,(1980)). areas of the workplace, including libraries, recep- 38. IT IS FURTHER ORDERED. that the rule amend- tion areas, and similar locations where employees ments adopted herein shall become effective 60 days after are reasonably expected to congregate. Telephones publication in the Federal Register. located in common areas of the workplace are re- 39. IT IS FURTHER ORDERED, that the petition for quired to be hearing aid-compatible no later than partial reconsideration filed by Petitioners IS GRANTED May 1, 1991. IN PART, to the extent indicated herein, but is OTHER- WISE DENIED. FEDERAL COMMUNICATIONS COMMISSION (4) All credit card operated telephones, whether located on public property or in a semi-public loca- tion (e.g. drugstore, gas station, private club), unless a hearing aid-compatible coin-operated telephone Donna R. Searcy providing similar services is nearby and readily Secretary available. However, regardless of coin-operated tele- phone availability, all credit card operated tele- phones must be made hearing aid compatible when replaced, or by May 1. 1991, which ever comes sooner. FCC 90-133 Federal Communications Commission Record 5 FCC Red No. 12 APPENDIX B It is proposed to amend Part 68 of the Commission's Rules and Regulations (Chapter I of Title 47 of the Code (5) Until May 1, 1992, telephones in hotel and motel of Federal Regulations, Part 68) as follows: rooms replaced after January 1, 1985, must be hearing 1. The authority citation for Part 68, continues to read aid-compatible unless at least ten percent of the rooms in as follows: a hotel or motel are equipped to accommodate a hearing impaired customer. A room is equipped to accommodate a hearing impaired customer if (i) itcontains a perma- Authority: Secs. 4, 5, 303, 48 Stat., as amended, 1066, nently installed hearing aid-compatible telephone; or (ii) 1068, 1082; (47 US.C. 154, 155, 303). it contains a telephone which will accept a plug-in hear- 2. Section 68.4 is proposed to be amended by revising ing aid-compatible handset, which shall be provided to paragraph (a)(2) to read as follows: the hearing impaired customer by the hotel or motel; or (iii) the room contains a jack into which a hearing aid- § 68. 4 Hearing aid-compatible telephones. compatible telephone provided to the customer by the hotel or motel may be plugged (i.e., in addition to a permanently installed telephone which is not hearing aid- compatible). If fewer than ten percent of the rooms in a hotel or motel are hearing aid-compatible, when replacing (a)(2) Unless otherwise stated and except for telephones a telephone the hotel or motel must, until the ten percent used with public mobile services, telephones used with minimum is reached: (A) replace it with a hearing aid- private radio services and secure telephones, every tele- compatible telephone, or (B) procure and maintain a phone listed in Section 68.112 must be hearing aid-com- plug-in hearing aid-compatible telephone handset which it patible. will provide to a hearing impaired customer upon request at check-in. As of May 1, 1992, all telephones in hotels and motels rooms are required to be hearing aid-compati- ble. (c) Telephones frequently needed by the hearing impaired. 3. Section 68.112 is proposed to be amended by Closed circuit telephones, i.e., telephones which cannot removing paragraphs (c)(1), (c)(3) and (c)(4); revising and directly access the public switched network, such as tele- redesignating paragraph (c)(2) as paragraph (c); adding phones located in lobbies of hotels or apartment build- paragraph (b)(5) and revising paragraphs (b)(1) and (b)(3) ings; telephones in stores, which are used by patrons to to read as follows: order merchandise; telephones in public transportation terminals which are used to call taxis or to reserve rental § 68.112 Hearing ald-compatibllity. automobiles, need not be hearing aid-compatible until replaced. FOOTNOTES The Telecommunications for the Disabled Act of 1982, Pub- (b) Emergency use telephones. Telephones "provided for emergency use" include the following: licLaw 97-410, 96 Stat. 2043, as codified in Section 710 of the Communications Act of 1934. as amended. (the Act), 47 U.S.C. § 610. (1) Telephones in places where a person with impaired 2 See Notice of Proposed Rule Making and Further Notice of hearing might be isolated in an emergency, including, but not limited to, elevators, automobile, railroad or subway Inquiry (NPRM). CC Docket No. 87-124. 3 FCC Rcd 1982, tunnels, highways and all areas of the workplace, includ- 1984-85 at paras. 23 and 24 (1988). ing common areas (libraries, reception areas and similar 3 The Hearing Aid Compatibility Act of 1988. Public Law locations where employees are reasonably expected to 100-394, 102 Stat. 976. codified as 47 U.S.C. § 610. congregate). With respect to the workplace, non-common 'See 47 C.F.R. § 68.112(c)(1). area telephones are not required to be hearing aid-com- 5 NATA also supports this view. See NATA Reply at p. 2. patible until May 1. 1992, except for telephones made 6 Petitioners note that telephones classified as frequently need- for use by that available to a hearing impaired employee ed are not required to be retrofitted even though they are employee in his or her employment duty. Such tele- deemed "essential." See 47 U.S.C. 6 610(). phones shall be hearing aid-compatible prior to that date, if and when replaced. The House Report accompanying the HAC Act of 1988 specifically provides that "The Committee intends the term [telephones provided for emergency usel be defined to include. but not be limiied to telephones in elevators, mine shafts, and any other place where a hearing impaired person might be isolated in the event of an emergency." H.R. Rept. No. 100-674. life-threatening or (3) Telephones needed to signal 100th Cong. 2d Ses. (1988) at 15. See also Report and Order in emergency situations in confined settings, including, but CC Docket No. 83-427, 49 Fed. Reg. 1352 (1983) at para. 27 not limited to, rooms in hospitals, residential health care (Commission will consider adding new categories of emergency facilities for senior citizens, convalescent homes, and pris- use telephones in the future). ons. If an alternative means of signalling life-threatening Sess. or emergency situations is available, a hearing aid-com- 8 Senate Report No. 100-391, 100th Cong. 2d at p. 5 patible telephone is not required until May 1, 1992, un- (1988). less replaced before that time. 5 FCC Red No. 12 Federal Communications Commission Record FCC 90-133 9 Because of the small number of non-HAC telephones at issue here. we believe the Commission's earlier discussion in the Order regarding enforceability problems was overstated. See 4 FCC Red at 4598. 10 Appendix B contains the proposed rules. 1 The issue was further confused by the Order implementing the HAC Act. Section 68.4 was inadvertently reworded in a way to require retrofitting of all hearing impaired employee work station telephones, not just those telephones replaced after Janu- ary 1, 1985. The rewording had a similar effect for telephones in lobbies (47 C.F.R. I 68.112(c)(3) and hospital rooms without alternative signalling devices (47 C.F.R. 1 68.112(l)(5)). None of the commenters has raised this issue on reconsideration, but in this order we return to the stana quo awue.The existing anoma- lies should be cured upon implementation of the rules proposed in the further notice. 12 We include in this proposal the other "confined settings" addressed in Section 68.112(b)(3) and (c)(5). including residen- tial health care facilities for senior citizens, convalescent homes, and prisons. 13Senate Report. note 8 spra. at p. 3. 14See also Bell Atlantic Comments at p. 2.