[Federal Register: May 7, 2008 (Volume 73, Number 89)] [Rules and Regulations] [Page 25566-25591] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr07my08-19] ======================================================================= ----------------------------------------------------------------------- FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 0, 20, 68 [WT Docket No. 07-250; FCC 08-68; FCC 08-117] Hearing Aid-Compatible Mobile Handsets, Petition of American National Standards Institute Accredited Standards Committee C63 (EMC) ANSI ASC C63\TM\ AGENCY: Federal Communications Commission. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Federal Communications Commission (Commission) adopts various proposals to amend its hearing aid compatibility policies and requirements pertaining to wireless services, including modifications and other requirements along the framework proposed in a consensus plan (Joint Consensus Plan) developed jointly by industry and representatives for the deaf and hard of hearing community. The Commission anticipates that these rule changes, taken together and largely supported by manufacturers, service providers, and consumers with hearing loss, will meet statutory obligations to ensure reasonable access to telephone service by persons with impaired hearing. These requirements are intended to benefit wireless users in the deaf and hard of hearing community, including the most disadvantaged who are more likely to rely on telecoil-equipped hearing aids, as well as to ensure that these consumers have a variety of handsets available to them, including handsets with innovative features. DATES: Effective June 6, 2008, except for Sec. Sec. 20.19(f)(2), 20.19(h), and 20.19(i) which contains information collection requirements that are not effective until approved by the Office of Management and Budget. The Commission will publish a document in the Federal Register announcing the effective date for those sections. The Commission will send a copy of the First Report & Order and Order on Reconsideration and Erratum in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of June 6, 2008. Public and agency comments on Information Collection Requirements are due on or before July 7, 2008. ADDRESSES: Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. In addition to filing comments with the Office of the Secretary, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to Judith Boley, Federal Communications Commission, Room 1- B441, 445 12th Street, SW., Washington, DC 20554, or via the Internet to PRA@fcc.gov. FOR FURTHER INFORMATION CONTACT: Thomas McCudden, Room 6118, Michael Rowan, Room 6603, or Peter Trachtenberg, Spectrum & Competition Policy Division, Wireless Telecommunications Bureau, Federal Communications Commission, 445 12th Street, SW., Portals I, Room 6119, Washington, DC 20554. For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Judith Boley, (202) 418-0214, or via the Internet at PRA@fcc.gov. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's First Report & Order (R&O) in WT Docket No. 07-250 released February 28, 2008, and the Commission's Order on Reconsideration and Erratum (Recon) in WT Docket No. 07-250 released April 17, 2008. The complete text of the R&O and Recon are available for public inspection and copying from 8 a.m. to 4:30 p.m. Monday through Thursday or from 8 a.m. to 11:30 a.m. on Friday at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. [The R&O and Recon may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-488- 5300, facsimile 202-488-5563, or you may contact BCPI at its Web site: http://www.BCPIWEB.com. When ordering documents from BCPI, please provide the appropriate FCC document number, FCC 08-68 for the R&O, and FCC 08-117 for the Recon. The R&O and Recon are also available on the Internet at the Commission's Web site through its Electronic Document Management System (EDOCS): http://hraunfoss.fcc.gov/edocs--public/ SilverStream/Pages/edocs.html.] Paperwork Reduction Act of 1995 Analysis This document contains new and modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget [[Page 25567]] (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how it might ``further reduce the information collection burden for small business concerns with fewer than 25 employees.'' In this present document, the Commission has assessed the effects of the reporting requirements that it has imposed on manufacturers and service providers, and finds that the information required should be readily available even to businesses with fewer than 25 employees, and that it is important to obtain this information in order to monitor compliance with the hearing aid compatibility requirements and to provide consumers with adequate information regarding the handsets available from particular service providers. Similarly, the Commission has assessed the effects of requiring manufacturers and service providers to post certain information regarding the hearing aid-compatible handsets they offer on their Web sites. The Commission notes that this requirement would apply only to entities that maintain a public Web site and is further subject to the de minimis exception. Both restrictions should limit, to some extent, the application of the requirement to small businesses with fewer than 25 employees. Moreover, the Commission has concluded that maintaining the limited information required, primarily a list of currently offered hearing aid-compatible handsets along with the associated ratings, will not be unduly burdensome, and that this requirement will significantly benefit consumers by ensuring convenient access to up-to-date information regarding compliant handset availability. Finally, the Commission has determined that requiring manufacturers to provide hearing aid compatibility contact information directly to the Commission will impose little if any additional burden on businesses with fewer than 25 employees. This requirement may even decrease these burdens, to the extent that it will allow consumers wishing to file a complaint to obtain that information from the Commission's Web site rather than contacting the Administrative Council for Terminal Attachment to obtain it from the service provider. Public and agency comments on Information Collection Requirements are due on or before July 7, 2008. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198 (see 44 U.S.C. 3506(c)(4)), the Commission seeks specific comment on how it might ``further reduce the information collection burden for small business concerns with fewer than 25 employees.'' The Commission notes, however, that section 213 of the Consolidated Appropriations Act 2000, Public Law 106-113, provides that rules governing frequencies in the 746-806 MHz Band become effective immediately upon publication in the Federal Register without regard to certain sections of the Paperwork Reduction Act. The Commission is therefore not inviting comment on any information collections that concern frequencies in the 746-806 MHz Band. I. Introduction 1. In the R&O, the Commission revises the hearing aid compatibility requirements applicable to providers of public mobile services and manufacturers of digital wireless handsets used in the delivery of those services. Specifically, the Commission adopts benchmark requirements for future deployment of hearing aid-compatible handsets, and related requirements, based on the proposals in a Joint Consensus Plan developed by an Alliance for Telecommunications Industry Solutions (ATIS) working group that included nationwide (Tier I) carriers, handset manufacturers, and several organizations representing the interests of consumers with hearing loss. The Commission also adopts certain other rule changes to better promote the accessibility of hearing aid-compatible handsets to deaf and hard of hearing consumers, including rules for the approval of future versions of the hearing aid compatibility technical standard. In the Recon, the Commission revises the procedures adopted in the R&O for approval of the use of future versions of the hearing aid compatibility technical standard that do not raise major compliance issues. The Commission intends to address other issues raised in its Notice of Proposed Rulemaking (NPRM), 72 FR 65494, November 21, 2007, in this proceeding but not addressed here in a subsequent report and order. 2. As a preliminary matter, the Commission takes this opportunity to express its deep appreciation for the efforts of the many parties involved in the development of the Joint Consensus Plan, whose recommendations the Commission substantially adopts today. The broad support for the Plan among both industry and consumer advocacy groups, as reflected in the record of this proceeding, testifies to the success of the proffered proposals in meeting the goals of the Hearing Aid Compatibility Act, and in addressing the concerns of manufacturers and service providers while still advancing the interests of consumers with hearing loss in having greater access to advanced digital wireless communications. The Commission strongly encourages the wireless industry, including new entrants, and consumer groups to continue their collaborative efforts in order to ensure the successful implementation of the measures adopted. 3. The changes the Commission adopts to the handset deployment requirements include (1) modifying the requirement, presently stayed until April 18, 2008, that manufacturers and service providers ensure that 50 percent of their digital wireless handset models meet established standards for radio frequency (RF) interference reduction, and (2) increasing the obligation on manufacturers and service providers to offer handset models that meet an established standard for inductive coupling capability. The Commission adopts a handset ``refresh'' requirement for manufacturers, obligating manufacturers to ensure annually that a certain percentage of their hearing aid- compatible handset models are newly issued that year, and it requires service providers to offer hearing aid-compatible handsets with different levels of functionality. 4. In addition to these modifications to the handset deployment requirements, the Commission adopts an updated version of the technical standard for measuring hearing aid compatibility in both acoustic coupling and inductive coupling modes, provides a phase-in period for its application as the exclusive standard, and creates a streamlined mechanism for adopting [[Page 25568]] future revisions of the standard. Because the Commission finds that the established technical standard, including the most recent version of that standard adopted, provides tests for measuring hearing aid compatibility for wireless services operating over a broader range of frequencies than is currently subject to hearing aid compatibility requirements, the Commission extends the scope of these requirements to the full range of frequencies covered by the established standard. To assist the Commission in monitoring the implementation of the new requirements and to provide information to the public, the Commission also requires manufacturers and service providers to continue to file annual reports on the status of their compliance with these requirements, and the Commission requires manufacturers and service providers to publish up-to-date information on their Web sites regarding their hearing aid-compatible handset models. 5. The Commission anticipates that these inter-related changes, taken together and largely supported by manufacturers, service providers, and consumers with hearing loss, will further ``ensure reasonable access to telephone service by persons with impaired hearing'' as required by the Communications Act. 47 U.S.C. 610(a). The increased requirements to offer handsets with inductive coupling capability will particularly benefit the most disadvantaged wireless users in the deaf and hard of hearing community, who are more likely to rely on telecoil-equipped hearing aids. The Commission also anticipates that the requirements that manufacturers refresh their products annually and that service providers offer handset models at differing functionality levels will help to ensure that consumers with hearing loss have a variety of handsets available to them, including handsets with innovative features, a goal that the Commission has sought to encourage since 2003. At the same time, the Commission concludes that the level of obligations and the flexibility provided in the new benchmarks satisfy its obligation to ``ensure that regulations adopted to implement [the Hearing Aid Compatibility Act] encourage the use of currently available technology and do not discourage or impair the development of improved technology.'' 47 U.S.C. 610(e). In particular, these changes help to resolve the technical issues that have been raised regarding the difficulty of producing a wide variety of Global System for Mobile Communications (GSM) handsets that both meet the requisite rating for acoustic coupling capability and include certain popular features, and thereby ensure that the impact of the rules remains as technology-impartial as possible while also ensuring the availability of hearing aid-compatible handsets to consumers. II. Background 6. Comments were due December 21, 2007, and reply comments were due January 7, 2008. The Commission received 19 comments and 16 reply comments. Comments came from a wide range of interests, including handset manufacturers, national, regional and small service providers, hearing loss advocacy groups, retail interests, and hearing aid manufacturers. While commenters generally support adoption of the Joint Consensus Plan, the record reveals differences regarding certain aspects of its implementation, as well as issues that are not addressed in the Plan. III. Discussion A. Hearing Aid-Compatible Handset Deployment Requirements 7. In order to promote its objective of furthering the availability of hearing aid-compatible handsets to the deaf and hard-of-hearing community, the Commission adopts several interrelated benchmarks, deadlines, and other requirements governing the deployment of hearing aid-compatible handsets. These actions, which are based largely on the Joint Consensus Plan and the proposals in the NPRM, balance several different approaches to improving wireless services for deaf and hard- of-hearing consumers. Based on the record, the Commission concludes that these requirements, as a whole, will offer great benefits to those consumers with hearing loss, without imposing undue costs on handset manufacturers, service providers, or consumers generally. 8. As proposed in the Joint Consensus Plan and the NPRM, the Commission first adopts new benchmarks and deadlines for 2008 through 2011 regarding deployment of handsets rated M3 (or higher) under American National Standards Institute (ANSI) Standard C63.19 for RF interference reduction and handsets rated T3 (or higher) under ANSI Standard C63.19 for inductive coupling capability. As regards the requirements for RF interference reduction, the Commission recognizes the difficulties that handset manufacturers and service providers with large product lines face with respect to the 50 percent benchmark originally scheduled to go into effect on February 18, 2008, and the Commission modifies the benchmark in the near term while at the same time ensuring that consumers will have significant and increasing choices of acoustic coupling-compatible models over the next several years. At the same time, the Commission increases the upcoming benchmarks for handset models that have inductive coupling capability. In this regard, to ensure that all consumers will have options regardless of where they reside or from which carrier they obtain service, the Commission adopts the same deployment benchmarks for all service providers, although the Commission extends the compliance deadlines for service providers other than Tier I carriers in recognition of their more limited handset options and their difficulty obtaining the newest offerings. Second, as an integral part of the handset deployment objectives the Commission sets forth, the Commission adopts requirements to ensure the availability of not just more handset models, but also a range of compatible handset models throughout the manufacturer-to-consumer supply and distribution channels. The Commission thus requires all manufacturers to ``refresh'' their hearing aid-compatible handset product offerings annually, and all service providers to offer consumers handset models with differing levels of functionality. Third, the Commission addresses several implementation issues, including the definition of what constitutes a distinct model, the treatment of handset models that operate over multiple frequency bands and/or air interfaces, and the application of the de minimis rule. Finally, while the Commission encourages manufacturers and service providers, including new entrants, to deploy handset models that meet the higher hearing aid compatibility standards denoted by M4 and T4 ratings, the Commission determines consistent with the record not to adopt any requirements in this regard at this time. 1. M3 / T3 Standards 9. The parties in this proceeding are nearly unanimous in supporting the NPRM's tentative conclusions on the appropriate M3 and T3 benchmarks and deadlines insofar as they apply to manufacturers and Tier I carriers offering nationwide services, referencing the compromise and agreement that culminated in the Joint Consensus Plan. However, six commenting parties representing regional or smaller service providers that are not Tier I carriers--MetroPCS [[Page 25569]] Communications, Inc. (MetroPCS), SouthernLINC Wireless (SouthernLINC), Virgin Mobile, USA, L.P. (Virgin Mobile), Rural Cellular Association (RCA), Chinook Wireless (Chinook), and Iowa Wireless Services, LLC (i wireless)--argue that they should not be subject to the same benchmarks or any new requirements beyond the existing mandates to offer two M3- and T3-rated (or higher) handset models per air interface. If any new requirements must apply, they argue that the benchmarks in these provisions should be reduced, proposing levels that would be approximately one-half of the Tier I levels. These commenters state that they would be forced to reduce their total product lines in order to meet the Tier I percentage benchmarks. They further contend that they have less access to hearing aid-compatible handsets than Tier I carriers, and that as a practical matter they would essentially be subject to more difficult requirements than Tier I carriers under the Joint Consensus Plan. On the other side of this issue, two advocates for the deaf and hard-of-hearing disagree, and argue that these service providers should be held to the same compatible handset deployment benchmarks as Tier I carriers because, with proper planning, these service providers can meet these benchmarks in the same, or perhaps slightly extended, timeframes. 10. For both RF interference reduction and inductive coupling capability, the Commission adopts the tentative conclusions in the NPRM for manufacturers and Tier I carriers, and hereby amends Sec. 20.19(c) and (d) of the Commission's rules to adopt the benchmarks and deadlines proposed in the NPRM. For service providers that are not Tier I carriers, the Commission adopts these same benchmarks, but the Commission extends their deadlines for compliance by three months in order to afford these entities additional flexibility to obtain and deploy the requisite numbers of compatible handset models. In consideration of the need for certainty, and in order to provide appropriate notification to manufacturers and service providers as regards the hearing aid compatibility obligations, the Commission had stayed enforcement of the 50 percent benchmark for deployment of handsets meeting an M3 (or higher) rating for RF interference reduction that would have become effective on February 18, 2008, for 60 days, until April 18, 2008. However, given the rule changes adopted in the R&O, the need for a stay is moot and it need not be extended. 11. In terms of RF interference reduction for acoustic coupling compatibility, manufacturers as of the effective date of this rule will have to meet a rating of M3 (or higher) for a minimum of one-third of their non-de minimis portfolio models offered to service providers per air interface in the United States. If one-third of the total number of models offered over an air interface is a fraction, manufacturers may round this number down, except that manufacturers offering four or five handset models over an air interface must offer at least two models meeting an M3 (or higher) rating. Tier I carriers, as of the effective date of this rule, will have to meet an M3 rating (or higher) for the lesser of 50 percent of their handset models per air interface (rounding fractions up) or a specific number of handset models pursuant to a schedule. For both manufacturers and service providers, these percentage and numerical obligations will remain in effect until such time as they may be changed by future Commission rulemaking action. This schedule requires Tier I carriers to provide an increasing number of handset models per air interface over which they offer service by future dates as follows: Before February 15, 2009: eight M3-rated (or higher) handset models; beginning February 15, 2009: nine M3-rated (or higher) handset models; and beginning February 15, 2010: ten M3-rated (or higher) handset models. The Joint Consensus Plan proposed that these and other deadlines would fall on the 18th of the month. For ease of administration, the Commission changes these deadlines to the 15th. Service providers not in Tier I will be subject to the same requirements, but only beginning three months after the effective date of the rules. As a result, the aforementioned requirements will take effect for such service providers as of May 15 of the respective year, rather than February 15. The Commission notes that under the revisions that it is adopting to Sec. 20.19 of the Commission's rules, these service providers remain required to offer two handset models per air interface rated M3 or higher until the new requirements become effective to them. 12. With respect to inductive coupling capability, the new requirements establish benchmarks for both manufacturers and service providers that combine percentage and numerical measures. For both manufacturers and service providers, these percentage and numerical obligations will remain in effect until such time as they may be changed by future Commission rulemaking action. First, manufacturers will be required to meet the greater of two measures for each air interface for which they offer handsets beginning February 15, 2009: (1) A minimum of two T3-rated (or higher) models for each air interface for which the manufacturer offers four or more handset models to service providers; or (2) at least 20 percent / 25 percent / one-third of models that the manufacturer offers to service providers over each air interface rated T3 (or higher) beginning February 15, 2009 / 2010 / 2011 respectively. These percentage calculations will be rounded down to the nearest whole number in determining the minimum number of handsets to be produced. Each manufacturer that is not subject to the de minimis exception (discussed later in this summary) will thus still be required to maintain production of at least two or more T3-rated (or higher) handset models per air interface for which it offers handsets. Prior to February 15, 2009, manufacturers remain subject to the current requirement to offer at least two models rated T3 or higher per air interface. 13. Second, as of the effective date of this rule, Tier I carriers must meet the lesser of the two following measures for each air interface over which they offer service: (1) One-third of digital wireless handset models are T3-rated (or higher) (rounding fractions up); or (2) a schedule as follows: before February 15, 2009: three T3- rated (or higher) handsets; beginning February 15, 2009: five T3-rated (or higher) handsets; beginning February 15, 2010: seven T3-rated (or higher) handsets; and beginning February 15, 2011: ten T3-rated (or higher) handsets. 14. Third, service providers other than Tier I carriers will also be required to meet the same benchmarks as Tier I carriers, but only beginning three months after the effective date of these rules. Again, the scheduled rollout dates will be May 15 of the respective years, rather than February 15. The Commission notes that under the revisions that it is adopting to Sec. 20.19, these service providers remain required to offer two handset models per air interface rated T3 or higher until the new requirements become effective to them. 15. Given the unanimous support in the record, the Commission finds that these benchmarks for both equipment manufacturers and Tier I carriers to deploy M3-rated and T3-rated handsets are in the public interest. The combination, two-option approach for deploying M3-rated handsets provides needed flexibility for Tier I carriers with large product lines to deploy new and additional models over time while still ensuring that substantial numbers of [[Page 25570]] compatible handset models will be available to consumers. These rule changes are supported by consumer advocates, and the Commission agrees that the balance they achieved with industry representatives in the Joint Consensus Plan represents a beneficial compromise between technological constraints and the needs of hard-of-hearing consumers. No commenting party has argued that these benchmarks for manufacturers and Tier I carriers would be detrimental to consumers. This approach also is more technology-impartial than a single 50 percent requirement, reflecting the uncontroverted technological impediments to meeting the M3 rating standard for many handset models that employ a GSM air interface. Moreover, the Commission adopts this modification in conjunction with new rules requiring manufacturers to ``refresh'' their compatible offerings with new products annually and requiring service providers to make hearing aid-compatible models available with different levels of functionality. These requirements will directly benefit consumers needing handsets with acoustic coupling capabilities. 16. The Commission also makes its decisions regarding the benchmarks for RF interference reduction and inductive coupling capability as an integrated whole. The Commission agrees with Hearing Loss Association of America and Telecommunications for the Deaf and Hard of Hearing, Inc. (HLAA/TDI) that increased requirements for deployment of T3-rated handset models comprise a beneficial trade-off for reducing, in certain circumstances, the thresholds for deploying M3-rated handset models that would have taken effect under the existing Sec. 20.19(c). The record supports the conclusion that customers' options for handsets that enable inductive coupling with hearing aids' telecoils have been more limited than for acoustic coupling compatibility. The current two-model rule for these entities was set in 2003 and has become out-dated, as it does not provide for an expansion of T3-rated handset options. Expanded requirements of this nature should benefit some of the most disadvantaged wireless users in the deaf and hard-of-hearing community, who are more likely to rely on telecoil-equipped hearing aids. The Commission agrees with HLAA/TDI that it is generally in the public interest to increase the benchmarks for manufacturers' and Tier I carriers' deployment of handsets meeting a T3 rating for inductive coupling capability. The Commission agrees as well with Gallaudet University Technology Access program and Rehabilitation Engineering Research Center on Telecommunications Access (Gallaudet/RERC) that additional requirements of this nature will ``significantly benefit individuals with severe to profound hearing loss.'' Thus, the Commission finds that an additional focus of its resources should be on making available additional T3-rated handset models. 17. The Commission also concludes that the same deadlines are appropriate for manufacturers and Tier I carriers. The Commission agrees with ATIS that a single, unified deadline as proposed in the NPRM and Joint Consensus Plan will improve compliance and make the rules simpler to administer. Moreover, unlike service providers not in Tier I, Tier I carriers have in the past not submitted waiver requests stating that they have experienced significant problems meeting deployment deadlines in the same time frame as manufacturers. Furthermore, unlike the initial deployment deadlines where manufacturers may have had no models certified as hearing aid- compatible until shortly before the date, Tier I carriers now need only to increase their selection from among available stock. Although AT&T, Inc. (AT&T) states that it prefers a staggering of the compliance deadlines after 2008, AT&T only cites generally the lag time for service providers to obtain handsets from manufacturers and does not provide more specific support evidencing a problem (current or past) with a unified date. The Commission also notes that ATIS, while supporting a unified deadline, states that it ``would not be opposed'' to a six week interval between deadlines for manufacturers and service providers. ATIS Comments at 6. The Commission therefore declines to extend the compliance deadlines for Tier I carriers. 18. The record raises separate questions regarding whether to apply the same handset deployment benchmarks to service providers other than Tier I carriers. As stated in the NPRM, the Joint Consensus Plan's proposals consider appropriate modifications only to the rules for manufacturers and nationwide, Tier I carriers, and they do not address the Commission's hearing aid compatibility benchmarks for regional or smaller service providers, including Tier II and Tier III carriers, or other service providers like resellers and mobile virtual network operators (MVNOs). In addition, none of the equipment manufacturers or Tier I carriers that have participated in this proceeding submitted comments on this issue. The only record the Commission has before it is comprised of the comments of six parties representing regional or smaller service providers not in Tier I--MetroPCS, SouthernLINC, Virgin Mobile, RCA, Chinook and i wireless--and two consumer advocate representatives, each group disagreeing with the other on this question. 19. After carefully considering this record in light of its past experience with non-nationwide service providers, and the costs and benefits of several possible rule change proposals, the Commission concludes that the same deployment benchmark alternatives should apply to all service providers, but it delays the compliance deadlines by three months for service providers that are not Tier I carriers. The Commission is not persuaded that service providers with small product lines will be unable to meet the 50 percent and one-third targets for handset models meeting RF interference reduction and inductive coupling capability targets, respectively. Moreover, the Commission finds that any burdens these requirements impose are necessary to ensure reasonable handset options for all hearing-impaired consumers regardless of where they reside or who they may receive service from, not just the 90 or so percent that may receive their service from Tier I carriers. Nonetheless, in recognition of the stated difficulties smaller service providers face in obtaining the latest handset models, the Commission delays each of their compliance deadlines by three months. 20. The Commission rejects the argument that the proposed benchmarks impose a ``greater'' burden on smaller carriers because they offer too few handset models to take advantage of the numerical alternatives, and will therefore be forced to meet the percentage benchmarks. The Commission does not accept that smaller service providers are subject to greater burdens simply because their percentages are higher: service providers with smaller product lines will be required to offer fewer hearing aid-compatible handset models than service providers with larger product lines. The alternative of offering eight to 10 handset models per air interface that meet an M3 or higher rating for RF interference reduction recognizes that carriers with large product lines may have difficulty obtaining sufficient compatible handset models to meet a 50 percent requirement, particularly since the manufacturer production benchmark is one-third going forward. In addition, the Commission finds that the [[Page 25571]] availability of eight to 10 M3-rated models will provide substantial choice to hard-of-hearing consumers, especially in light of its other requirements, and therefore the Commission is not requiring service providers with large product lines to offer more models. The incremental benefits to consumers of requiring more than eight to 10 compatible models are diminished, and are outweighed by the burdens on the service provider. 21. The Commission finds that the availability of percentage benchmarks is necessary to ensure that smaller service providers are not overly burdened. Even though eight to 10 M3-rated models provide consumers with substantial choice, the Commission does not believe it reasonable to require that eight to 10 compatible models be offered by service providers with smaller product lines, including many non- nationwide service providers. Therefore, the Commission permits these service providers instead to meet the compatibility standard for 50 percent of their product lines, ranging from two to seven models per air interface depending on the total number of models offered. Similar reasoning underlies the alternative benchmarks for inductive coupling capability. The rule is designed to permit each service provider to meet the benchmark that is less burdensome for it depending on its particular situation, while providing consumers with significant choice no matter which service provider they may use. 22. The Commission is also not persuaded by arguments that service providers other than Tier I carriers will be unable to obtain sufficient hearing aid-compatible handset models to meet the benchmark percentages and therefore will have to reduce their product lines. These service providers argue that they have less access to hearing aid-compatible models than Tier I carriers, among other reasons because they must purchase handsets through third-party vendors and because the larger carriers sometimes have exclusive arrangements to obtain certain handset models. The Commission notes, however, that the number of hearing aid-compatible models these service providers must obtain to meet the percentage benchmarks is not large. For example, a service provider that offers 10 handset models over an air interface would need to offer five that meet an M3 (or higher) rating and four that meet a T3 (or higher) rating. Moreover, the percentage requirement for T3- rated (or higher) models would not become effective for such a provider until May 2009. Until then, the service provider could satisfy the rule by offering the numerical alternative of three models meeting this standard. The Commission acknowledges that many smaller service providers' offerings of compatible handsets may currently fall short of these levels. Given the substantial and increasing number of hearing aid-compatible models that are currently available, however, the Commission is convinced that, with reasonable effort, even the smallest non-de minimis providers can obtain enough compatible models to satisfy the particular benchmarks that are applicable to them. Commenters offer no evidence that so many hearing aid-compatible models are subject to exclusivity arrangements as to significantly diminish the number that they are able to obtain, or that large numbers of compatible models are unavailable through vendors. As it has stated in the past, the Commission expects that, if a service provider's usual vendors cannot supply appropriate handset models, it will make arrangements with other suppliers. The Commission also remains unpersuaded by Virgin Mobile's general argument that few hearing aid-compatible models are available in the lower price ranges that its customers demand. Although Virgin Mobile may reasonably select the hearing aid-compatible models that are most likely to appeal to its customer base, the Commission continues to believe it should not be relieved of its duty to make hearing aid- compatible options available to its customers simply due to its prediction that customers will not choose to purchase these models. In addition, the Commission anticipates that in the future, manufacturers may produce more hearing aid-compatible models in lower price ranges in order to facilitate carriers' fulfillment of their obligation to offer phones with multiple levels of functionality. 23. Moreover, to the extent the deployment benchmarks that the Commission adopts do impose increased burdens on small carriers, these burdens are outweighed by the benefits to consumers. Commenters representing people with hearing loss support the universal application of these benchmarks, stating that this would assist a great number of hearing aid users. These additional benchmarks, especially the new benchmarks for inductive coupling capability, should provide valuable benefits to affected consumers with profound hearing loss. Regardless of size and product line, every service provider has customers who need hearing aid-compatible phones, and it is incumbent upon each wireless service provider to make arrangements and allocate the resources that are necessary to meet their needs. 24. The Commission concludes that a three-month extension of deadlines for meeting these benchmarks, however, is appropriate with regard to service providers that are not Tier I nationwide providers, including regional and smaller providers, such as Tier II and Tier III carriers, and other service providers such as resellers and MVNOs. Five non-Tier I commenting parties argue that if they are subjected to new deployment benchmarks, they should receive extended deadlines of six months to one year following Tier I carriers' deadlines. The Commission agrees with the position of consumer advocate groups, however, that a three-month delay is more appropriate. While the Commission recognizes that smaller service providers may reasonably require some additional time to obtain up-to-date compliant products through vendors, the Commission is concerned that a longer delay would unnecessarily and unacceptably deny the benefits of its rules to consumers. Moreover, a three-month delay is consistent with past instances where the Commission has recognized that waivers of up to approximately three months for non-Tier I service providers have often been justified, but has generally denied requests for longer periods. The Commission finds that an extension beyond three months may only serve to excuse poor planning, inferior oversight, or some other factor within a service provider's control. Indeed, given that service providers have known for years that they would likely become subject to a 50 percent benchmark for handset models with RF interference reduction, which will remain the operative requirement for many of them, and at most they will have to obtain one additional handset model to satisfy the first new benchmark for inductive coupling capability, the Commission would arguably be justified, at least for the 2008 benchmarks, to afford no extension at all beyond that granted Tier I service providers. The Commission therefore concludes that a three-month delay will provide ample time for service providers not in Tier I to obtain the compliant handset models that they need to satisfy both the 2008 and future benchmarks. 2. New Requirements for Handset Deployment 25. As an integral part of the handset deployment objectives the Commission sets forth today, the Commission also adopts two new rules that together will [[Page 25572]] facilitate the offering of not just more handsets, but also a range of compatible handset models throughout the manufacturer-to-consumer supply and distribution channels. The annual product refresh rule for manufacturers and the requirement that service providers offer handset models with different functionality levels should provide consumers with access to hearing aid-compatible handsets with the newest features, as well as more economical models. These proposals are an essential part of the Joint Consensus Plan, and they are broadly supported in the record. Indeed, the record demonstrates that hard-of- hearing consumers demand an increased selection of popular and innovative handsets. While requirements to deploy minimum numbers or percentages of hearing aid-compatible handset models are essential to ensure that such phones will be available to consumers, the Commission finds, based on the record and experience under the existing rules, that these additional requirements are necessary to enable consumers to select a wireless phone that is not only compatible with a given hearing aid, but that also meets their other needs as a consumer, such as offering the latest features. Accordingly, the Commission adopts the product refresh rule for manufacturers and the functionality level rule for service providers. a. Product Refresh Rule for Manufacturers 26. Every commenter to address the issue supports adoption of the proposed product refresh requirement without modification. The Commission therefore adopts this rule as set forth in Sec. 20.19(c)(1)(ii) of the rules (set forth at the end of this summary). The Commission finds that this rule is necessary to ensure that service providers will be able to offer to consumers a selection of hearing aid-compatible models including those with the latest features. The Commission further finds that the rule will not cause undue costs to manufacturers. Indeed, all commenters representing equipment manufacturers supported the rule on grounds that it would permit them to provide consumers with a variety of devices. The Commission also corrects an apparent typographical error in the rule as proposed in the Joint Consensus Plan. As reproduced in the NPRM, the Joint Consensus Plan states that the number of new models to be produced is to be determined by ``multiplying the total number of new [hearing aid- compatible] models offered in the United States by fifty percent.'' 22 FCC Rcd 19670, 19712 App. B (2007). The Commission corrects this to clarify that the relevant figure is 50 percent of the total required number of hearing aid-compatible models. b. Rule Requiring Service Providers To Offer Models With Differing Levels of Functionality 27. Upon consideration of the record, the Commission adopts the handset functionality rule as proposed and applies it to all service providers. As applied to Tier I carriers, all commenters representing Tier I carriers support a handset functionality rule. The Commission therefore adopts the rule in order to ensure that hearing aid users can select from a variety of compliant handset models, with varying features and prices. Moreover, these commenters agree that service providers should have flexibility to define their product levels because, as ATIS states, ``[i]t is not feasible to identify a uniform set of `tiers' for all carriers that will appropriately apply to each carrier's unique set of product offerings.'' ATIS Comments at 7-8. The Commission concurs that given the great variety and continual development in handset features, any effort on its part to define criteria of functionality would be infeasible and might deter innovation, and the Commission therefore prescribes no criteria. The Commission does, however, stand by its guidance that a handset's level of functionality may include its capability to operate over multiple frequency bands. While Research in Motion Limited (RIM) objects that the availability or unavailability of a particular frequency band does not represent anything of value to a consumer, the Commission disagrees on the ground that the ability to access additional frequency bands may increase the circumstances under which the consumer can use the phone. The Commission clarifies that no service provider is required to offer phones that operate over multiple bands, and that this is simply one factor a service provider may use to distinguish the functionality of its handset models. In addition, the Commission adopts Gallaudet/RERC's suggestion to require service providers to disclose their functionality criteria in their reports to the Commission and on their Web sites, in order that both the Commission and the public may understand the basis for their distinctions. 28. Finally, the Commission determines to apply the rule to all service providers, not only nationwide Tier I carriers. Several regional and smaller service providers do not support such a requirement, arguing, for example, that such a requirement would be intrusive and that the statute does not require the Commission to ensure that hearing aid users have feature-rich phones. Other commenters, however, contend that the functionality level rule should be applied universally. For the same reasons discussed with respect to the handset deployment benchmarks, the Commission concludes that consumers with hearing loss should not be deprived of a choice of handset features based simply on their place of residence or their service provider. Moreover, given flexibility to define levels, even service providers with relatively small product lines should be able to distinguish among their handset models in a manner that permits them to define levels of functionality appropriate to their situation. The Commission does not expect a provider with four hearing aid-compatible models, for example, necessarily to offer as many levels of functionality or as broad a range of product offerings as a Tier I carrier with eight or more models, but the Commission does expect such a provider to draw some distinctions. 3. Implementation Issues a. Definition of a Model 29. RIM supports the proposal to accept a manufacturer's determination of whether a device is a distinct model. PerrineCrest Radio Consulting (PerrineCrest Radio) asserts that the Commission should further define a model, or that at a minimum, manufacturers should explain how they distinguish their models. PerrineCrest Radio argues that this would help in monitoring the effectiveness of its requirements. It does not offer any suggestion regarding how the Commission should define a model, however. 30. The Commission concludes that its proposal represents the right approach to determinations of what constitutes a ``model'' under its rule. Consistent with its proposal, the Commission determines that, for purposes of the hearing aid compatibility rules, a manufacturer may not characterize as separate models any devices that do not in fact possess any distinguishing variation in form, features, or capabilities. Thus, under some circumstances, handsets assigned different model numbers by the manufacturer may count as a single model under the rules, such as where multiple model numbers are assigned to the same handset to distinguish units sold to different carriers, or are used to designate other distinctions that do not relate to either form, features, or [[Page 25573]] capabilities. Otherwise, the Commission finds it appropriate to defer to manufacturers regarding which devices constitute distinct models, consistent with how those devices are marketed to the public, because manufacturers are best positioned to determine when and how to market their own devices as distinct models. The Commission notes that it has, to date, deferred to manufacturer designation of distinct model lines and has not come across any instance in which such designations were made in bad faith to escape hearing aid compatibility obligations or did not otherwise reflect legitimate differences between devices. The Commission has no reason to believe that manufacturers will not continue to act in good faith in this regard. Accordingly, the Commission will accept manufacturers' determination of whether a device is a distinct model, subject only to these aforementioned restrictions. 31. While the Commission does not generally establish specific requirements regarding model distinctions, the Commission specifies one circumstance in which the Commission requires a device to be given a distinct model designation. Specifically, where changes are made to a device that result in a change in the hearing aid compatibility rating, the Commission requires manufacturers, and service providers down the distribution chain, to provide the altered device a model name/number that is distinct from the original device's designation. Based on its previous experience and the need for service providers and consumers to determine easily the compatibility of particular handset models, manufacturers and service providers should not be simultaneously offering two or more identically designated models with different hearing aid compatibility ratings. 32. The Commission will not require a new model designation where a change in rating is not the product of a change in the device but is simply the result of certifying for hearing aid compatibility a model that was not previously so certified. The Commission further clarifies that in such an instance, once the model has been certified, service providers offering that model may offer it to satisfy their deployment obligations, even if the particular units they offer were obtained from the manufacturer prior to date of certification. They must, however, ensure that such models comply with hearing aid compatibility labeling obligations, if necessary by contacting the manufacturer and requesting appropriate external labeling and inserts. Further, they may not count any model as hearing aid-compatible for periods prior to the date on which the model was certified for hearing aid compatibility. b. Multi-Mode and Multi-Band Handsets 33. Commenters generally support the proposal that a handset be considered hearing aid-compatible only if it is compatible in all frequency bands and modes over which it operates and for which there are established standards. RCA, however, opposes the proposal, arguing that it will reduce availability of hearing aid-compatible handsets, and will particularly harm small service providers whose access to such handsets is already limited. 34. In addition, although most manufacturers and service providers support the basic multi-band/mode proposal where hearing aid compatibility technical standards already exist, they oppose the proposal in the NPRM to automatically treat multi-band and multi-mode handsets as non-compatible if they operate over frequency bands or modes without established standards. They assert that the proposal may inhibit or delay deployment of new technologies and converged devices, and that there is no evidence that new frequency bands or air interfaces will cause interference problems. In particular, some commenters express concerns regarding the effect of such a rule on deployment of multi-mode handsets that offer Wi-Fi capability. Commenters further assert that the proposal will mislead consumers with hearing loss into concluding that all handsets operating over new frequency bands or using new technology are incompatible with hearing aid use, even if the handsets can be certified compatible in all operating modes and frequency bands that have established standards. Finally, they argue that the proposal violates the Commission's statutory obligation 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,'' 47 U.S.C. 610(e), and would also exceed its statutory authority by effectively imposing hearing aid compatibility requirements in the absence of established standards for such compatibility. Instead of the proposed rule, they recommend that the Commission provide ANSI time to identify actual interference concerns and offer specific standards or recommendations, and otherwise permit handsets to be designated hearing aid-compatible so long as they have been certified to meet hearing aid compatibility standards in all frequency bands and operating modes that have established standards. 35. Gallaudet/RERC supports the proposal in the NPRM, arguing that consumers who purchase handsets labeled hearing aid-compatible have an expectation that such phones are compatible in all of their operations, and that the proposed rule will therefore prevent consumer confusion regarding hearing aid compatibility when the phone is operating over frequency bands or air interfaces that do not have standards. Gallaudet/RERC further argues that the rule will provide incentives to the wireless industry to establish standards in a timely fashion. Commenters in opposition respond that the Commission can address confusion concerns with disclosure requirements, and that there is no reason to believe that the rule will hasten development of standards. These commenters also disagree that the rule is justified to induce more rapid adoption of new standards. 36. A filing on behalf of both industry and consumer group representatives asked that the Commission hold the record open to enable them to develop a consensus proposal regarding multi-mode and multi-band phones that operate in part over air interfaces or frequency bands for which no hearing aid compatibility standards exist. As set forth in this filing, members of ATIS' Incubator Solutions 4 (AISP.4-HAC) state that they have agreed with representatives of consumers with hearing loss to develop such a proposal. The filing also states that AISP.4-HAC anticipates filing general principles regarding this consensus plan within three months of the release of the Commission's Order, with more specific information regarding this proposal to be filed within six months of the release of the Order. ATIS states that, with the exception of devices incorporating Wi-Fi capability, it is unaware of any phones currently available that operate over multiple air interfaces or frequency bands, some of which have hearing aid compatibility standards and some of which do not. Finally, with regard to devices that incorporate Wi-Fi capability, the filing states that the members of AISP.4-HAC support allowing such devices to be labeled as hearing aid-compatible if they satisfy hearing aid compatibility standards for all other frequency bands and air interfaces over which they operate. 37. In order to both protect consumers and provide clarity to industry with respect to handset offerings that already [[Page 25574]] exist, while allowing further consideration of the longer-term issues, the Commission takes the following steps at this time. First, the Commission adopts the Joint Consensus Plan's proposal to clarify that, to be counted as compatible, a handset model must be hearing aid- compatible for each air interface and frequency band it uses as long as standards exist for each of those bands and interfaces. Second, the Commission leaves the record open for further submissions in the near term, including an anticipated consensus proposal, regarding whether a phone that operates in part in bands or air interfaces for which no standards exist should be counted as compatible, if it is compatible in all bands and air interfaces for which hearing aid compatibility standards exist. Finally, because there already exist a large number of handset models that operate over the Wi-Fi air interface as well as in bands and air interfaces for which there are hearing aid compatibility standards, the Commission will allow such phones on an interim basis to be counted as hearing aid-compatible if they otherwise qualify as hearing aid-compatible under its rules, but will require consumers to be informed that those phones have not been rated for hearing aid compatibility with respect to their Wi-Fi operations. 38. The Commission first adopts the Joint Consensus Plan's proposal and establishes that, to be offered as hearing aid-compatible, a handset must be hearing aid-compatible for every frequency band and air interface that it uses for which standards have been adopted by the Commission. As indicated in the NPRM, the Commission finds that requiring a hearing aid-compatible handset to be hearing aid-compatible in all such frequencies and modes of operation will better conform to the expectations of consumers that purchase such handsets. Conversely, allowing manufacturers and carriers to satisfy their deployment requirements with partially-compatible handsets where hearing aid compatibility standards exist, would likely cause significant confusion to consumers who purchase handsets that are labeled and offered as hearing aid-compatible, and who perhaps experience compatibility when the handset is tested in-store, only to discover later that the handset's compatibility varies depending on which of its frequency bands or air interfaces is in use at any particular moment. The Commission notes that it emphasized the benefits to hard-of-hearing consumers of being able to rely on a full range of functionality in their hearing aid-compatible handsets and of not having to learn all the technical details, such as the frequencies on which their phones operate. Further, although RCA expresses concern that the rule will discourage the manufacture of hearing aid-compatible multi-mode handsets, the Commission notes that those manufacturers to comment on the issue all support the rule as proposed in the Joint Consensus Plan, some expressly indicating that the rule will not impede the development of technology. 39. Second, except for its interim ruling with respect to the Wi-Fi air interface, the Commission does not here resolve whether, or to what extent, multi-band and multi-mode handsets should be counted as hearing aid-compatible if they operate in part over frequency bands or air interfaces for which technical standards have not yet been established. The record contains arguments both in favor of and against treating such handsets as hearing aid-compatible. Moreover, according to industry representatives, no such handsets currently exist, with the exception of devices incorporating Wi-Fi capability. The Commission accepts the proposal endorsed by both industry and consumer representatives to leave the record open so that they may develop a consensus plan on this issue in the near term. When the Commission subsequently addresses the application of hearing aid compatibility requirements to Wi-Fi operations, it will consider an appropriate transition regime to bring any requirements into effect. 40. Finally, the Commission adopts an interim rule to allow handsets with Wi-Fi capability that otherwise meet hearing aid compatibility standards to be certified as hearing aid-compatible. Unlike the situation with future air interfaces and anticipated frequencies (e.g., the 700 MHz band), many handset models are already being produced and offered to consumers with Wi-Fi capability, including a significant proportion of the newest handset models. Moreover, the Commission has not yet addressed the extent to which hearing aid compatibility requirements should apply to handset models in various configurations incorporating Wi-Fi capability (which was not originally developed for voice transmissions), an issue on which the Commission sought comment in the NPRM. Therefore, the Commission adopts an interim measure to provide certainty and avoid discouraging the use of currently-available Wi-Fi technology during the period until the Commission addresses the status of Wi-Fi. Specifically, the Commission will not at present preclude a handset model that incorporates a Wi-Fi air interface from being offered as hearing aid-compatible so long as the handset otherwise qualifies as hearing aid-compatible under its rules. 41. To reduce consumer confusion as much as possible, however, the Commission also will require manufacturers and service providers, where they provide hearing aid compatibility ratings for handset models that incorporate operations using a Wi-Fi air interface, to clearly disclose to consumers that the handset has not been rated for hearing aid compatibility with respect to its Wi-Fi operation. This includes phones that may be used to provide Voice over Internet Protocol using a Wi-Fi air interface. The Commission recognizes that such disclosure is not likely to fully relieve potential customer confusion regarding handsets that meet established hearing aid compatibility standards for all of their operations except Wi-Fi. Given the current circumstances, however, the Commission believes the better course is to require disclosure of the lack of a hearing aid compatibility rating over the Wi-Fi air interface rather than preclude handset models that incorporate a Wi-Fi air interface from being considered hearing aid- compatible. In addition, the Commission expects service providers to train the sales staff at their owned or operated retail outlets regarding the lack of a rating for Wi-Fi operations and its implications. To give manufacturers and service providers sufficient time to develop and implement effective means to disclose this information (e.g., inclusion of call-out cards or other media, revisions to their packaging materials, supplying of information on Web sites) where hearing aid compatibility ratings are provided, this requirement will become effective six months after the effective date of the rules adopted in the R&O. The Commission also notes that Working Group 6 of the ATIS incubator is developing language to inform consumers when otherwise hearing aid-compatible phones operate in part over frequency bands or air interfaces that do not have hearing aid compatibility standards. c. De minimis Rule 42. Most commenters addressing the issue support the Joint Consensus Plan proposal to retain the de minimis exception to hearing aid compatibility requirements and to codify that the exception applies on a per air interface basis. HLAA/TDI and Gallaudet/RERC propose, however, that the exception be modified so that it not apply on a [[Page 25575]] permanent basis to large businesses that produce only one or two handsets with mass appeal, such as Apple's iPhone. Gallaudet/RERC argues that, if the exception applied to companies like Apple that do not routinely manufacture handsets, their handsets might be subject to the exception indefinitely, and consumers with hearing loss might never have the opportunity to use such devices. It further argues that the exception was not intended to permanently relieve large and prosperous companies whose handsets produce large profits from the obligations of Sec. 20.19. It therefore suggests that the exception be applicable in such cases only for a certain period of time. HLAA/TDI similarly argues that the exception was only intended to protect small businesses, and should therefore be limited in its application to large businesses like Apple. In response, several commenters oppose the limitations suggested by Gallaudet/RERC and HLAA/TDI, arguing that the exception was not intended to be limited to small businesses, and that the proposed limitations risk undermining the rule's objective of preserving competition and innovation from new entrants. 43. The Commission adopts the proposal of the Joint Consensus Plan to retain the existing de minimis exception, which in most of its applications was not opposed in the record. The Commission further adopts the proposal to codify that the exception applies on a per air interface basis. No commenter has objected to applying the exception on a per air interface basis, and the Commission sees no reason to depart from an earlier decision that adopted that interpretation. As the Commission previously indicated, a per air interface approach to the de minimis exception to the handset deployment obligations follows from the deployment obligations themselves, which are also applied on a per air interface basis (i.e., manufacturers and service providers must offer the specified number of handsets for each air interface in their product lines). If the Commission were to apply the exception to the total number of handsets across a manufacturer's total product line while requiring the specified number or percentage of hearing aid- compatible handsets for each air interface, a manufacturer that offered just one handset each for four different interfaces would fall outside the exception for each of the four interfaces. This result would force the manufacturer in question to either significantly increase the number of handsets in its product line to meet a multiple-handset deployment obligation for each air interface or else withdraw some of its existing products from the U.S. wireless market, which could r