**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  |                              |
|                                  | *) |                              |
| Panasonic Corporation of North   | ** |                              |
| America                          |    |                              |
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| Request For Waiver of Hearing    | *) |                              |
| Aid-Compatibility and Volume     | ** |                              |
| Control Requirements for its     |    |                              |
| Panasonic 2.4 GHz FHSS Cordless  | *  |                              |
| Telephone with Bone Conduction   | *) |                              |
| Type Ear-Piece,                  | ** |                              |
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| 47 C.F.R. §§ 68.316, 68.317      | *  |                              |
|                                  | *) |                              |
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**ORDER**

**Adopted: August 16, 2005 Released: August 18, 2005**

By the Deputy Chief, Consumer & Governmental Affairs Bureau:

1.  In this *Order* we address a petition for waiver of 47 C.F.R. §§
    68.316 and 68.317 of the Commission's rules filed by Panasonic
    Corporation of North America (Panasonic) on April 19, 2005.[^1]
    Section 68.316 provides the technical requirements for ensuring that
    telephones are hearing aid compatible.[^2] Section 68.317 provides
    technical standards for hearing aid compatibility volume
    control.[^3] Panasonic seeks approval of a telephone device,
    [Panasonic 2.4 GHz FHSS Cordless Telephone with Bone Conduction Type
    Earpiece, Model KX-TG2388(xx)]{.underline}, that provides a "bone
    conduction earpiece (vibrator)"[^4] in order to allow individuals
    with conductive hearing loss to use the telephone. Because the bone
    conduction telephone is a specialized device unlike traditional
    telephone receivers, Panasonic requests a waiver of Sections 68.316
    and 68.317.

2.  *Background: Part 68 Registration Process*. All terminal equipment
    manufactured in, or imported into, the United States and connected
    to the public switched telephone network (PSTN) must conform to the
    requirements of Part 68 of the Commission's rules.[^5] To that end,
    Part 68 requires either that terminal equipment be tested by a
    Telecommunications Certification Body (TCB)[^6] or that the
    responsible party follows the procedures for a Supplier's
    Declaration of Conformity (SDOC).[^7] A waiver of Sections 68.316
    and 68.317 allows the petitioner to apply to a TCB, or to file its
    SDOC pursuant to the Part 68 equipment approval requirements,
    despite the fact that the device does not meet the technical
    standards of Sections 68.316 and 68.317.

3.  *Waiver Standard*. Pursuant to Section 1.3 of the Commission\'s
    rules, the Commission may waive any provision of its rules, in whole
    or in part, on its own motion or on petition, if good cause is
    shown.[^8] Section 68.5 more specifically provides that the
    Commission, upon application of any interested person, may waive the
    requirements for hearing aid compatibility with respect to new
    telephones, or telephones associated with new technology or
    service.[^9] In a proceeding to grant a waiver from the Commission's
    hearing aid compatibility requirements, the Commission shall
    consider the effect of granting a waiver on persons with hearing
    disabilities.[^10]

4.  More broadly, in reviewing a request for a waiver, the Commission
    will consider established legal standards for waiver of the
    Commission's rules. The Commission will adhere strictly to its rules
    unless a party can demonstrate that "in the public interest the rule
    should be waived."[^11] Furthermore, the Commission may only waive a
    provision of its rules for "good cause shown."[^12] The Commission
    must take a "hard look" at applications for waiver[^13] and must
    consider all relevant factors when determining if good cause
    exists.[^14] The party petitioning the Commission for a waiver bears
    the heavy burden of showing good cause: "\[an\] applicant \[for a
    waiver\] faces a high hurdle even at the starting gate."[^15] In
    addition, the "\[t\]he agency must explain why deviation better
    serves the public interest, and articulate the nature of the special
    circumstances, to prevent discriminatory application and to put
    future parties on notice as to its operation."[^16] Finally, a
    waiver of one or more portions of the Commission's rules does not
    excuse an applicant from compliance with the Commission's other
    requirements.[^17] Applying these standards, we find good cause
    exists to grant Panasonic's waiver request, to the extent indicated
    herein, and that doing so is in the public interest.

5.  *Discussion*. In response to the *Panasonic Request for Waiver*, the
    Commission issued a *Public Notice*,[^18] to which three comments,
    all supporting the request for waiver, were filed in response.[^19]
    Panasonic, in its comments, asserts that it developed its Panasonic
    2.4 GHz FHSS Cordless Telephone with Bone Conduction Type Earpiece
    in order to fit the needs of a small niche of individuals with
    hearing disabilities that cannot process sound received through the
    outer ear but can process sound when the bones of the inner ear are
    vibrated directly. As Panasonic explains, "\[t\]he bone conduction
    speaker design provides vibrations, which allow a user to hear
    telephone conversations by placing it against the user's head."[^20]
    Although, as Panasonic notes, "this product also can be used in
    \[a\] conventional manner, with sound transmission directly through
    the outer ear to the inner ear's auditory nerve,"[^21] when "tested
    strictly in accordance with §68.316 and RS-504, its axial and radial
    field intensity falls outside induced frequency response at
    frequencies below the 700 Hz range" and therefore not within the
    Commission's definition of hearing aid compatible.[^22] Similarly,
    Panasonic states that its request for volume control waiver is
    necessary because the design of the handset does not allow the
    volume "to be precisely measured in accordance with traditional
    measurement techniques." However they believe that the "product's
    volume control amplification is appropriate for its intended users,
    who themselves are often unable to take advantage of other
    accessible products."[^23]

6.  Panasonic intends to compensate for the lack of hearing aid
    compatibility through marketing and appropriate warnings.[^24]
    Panasonic states that the "product would be marketed as a bone
    conduction type telephone product to address the special needs of
    transmission hearing impaired people."[^25] Further, the product's
    outer shipping box will "contain conspicuous marking 'This product
    is a bone conduction telephone product and is non-hearing aid
    compatible.'"[^26] Additionally, the operating instructions will
    include warnings that the product is not hearing aid compatible and
    instructions on how it can be best used with a hearing aid.[^27]

7.  SHHH states that although they estimate only 5-10 percent of people
    with hearing loss would benefit from this product,[^28] and it may
    not be hearing aid compatible, "\[i\]f in fact the phone is designed
    to work directly only through bone conduction then the request for
    waiver makes sense, hearing aid compatibility is not necessary, and
    we support that."[^29] SHHH, however, does express a few concerns.
    First, they assert that because the telephone has an acoustic signal
    as well as bone conduction use, Panasonic "needs to clarify what
    this phone is intended to be and the intended user group" and
    continue working towards making the acoustic signal hearing aid
    compatible.[^30] SHHH also requests "clarification of the volume
    control levels to ensure that they are adequate for the intended
    users."[^31] Finally, SHHH asserts that Panasonic should refer to
    their target audience as "people with conductive and or mixed
    hearing losses."[^32]

8.  TRA supports the waiver because, "\[t\]he individuals that will
    benefit from this device will not benefit from it being hearing aid
    compatible."[^33] TRA also notes that this product brings new
    technology to the field of bone conduction telephones as, "bone
    conduction telephones are only available as corded telephones and
    therefore do not provide an individual in need of the device to have
    functionally equivalent access to telecommunications services," and
    "\[h\]aving the cordless bone conduction telephone will definitely
    meet an existing need in the hearing loss community."[^34]

9.  We agree that Panasonic's bone conduction telephone is a niche
    product that will serve the public interest by addressing the unique
    needs of a small segment of individuals with hearing disabilities.
    We therefore grant Panasonic's request for waiver of Section 68.316.
    Although we accept that this particular model's audio signal is not
    hearing aid compatible, we join SHHH in urging Panasonic to make
    future versions of the phone compatible with hearing aids so all
    users can benefit from the device. In addition, we grant Panasonic's
    request for waiver of Section 68.317 given Panasonic's explanation
    that the volume control on the handset is appropriate for the bone
    conduction user. We again agree with SHHH, however, that in order to
    avoid confusion, the phrase "people with conductive and or mixed
    hearing losses" should be used to better describe the target market
    for this phone. Finally, the Commission reminds Panasonic to ensure
    that the appropriate warning labels about lack of hearing aid
    compatibility, both on the box and in the operator's instructions,
    be made as conspicuous as possible.

10. Accordingly, IT IS ORDERED that, pursuant to authority delegated in
    Sections 0.141 and 0.361 of the Commission's rules, 47 C.F.R. §§
    0.141, 0.361, and Section 1.3 of the Commission's rules, 47 C.F.R. §
    1.3, the request for waiver of Sections 68.316 and 68.317 of the
    Commission's rules for [Panasonic 2.4 GHz FHSS Cordless Telephone
    with Bone Conduction Type Earpiece, Model
    KX-TG2388(xx)]{.underline}, filed by Panasonic Corporation of North
    America, IS GRANTED to the extent stated herein.

11. To request materials in accessible formats for people with
    disabilities (Braille, large print, electronic files, audio format),
    send an e-mail to <fcc504@fcc.gov> or call the Consumer &
    Governmental Affairs Bureau at (202) 418-0530 (voice), (202)
    418-0432 (TTY). This *Order* can also be downloaded in Word or
    Portable Document Format (PDF) at: <http://www.fcc.gov/cgb/dro>.

    FEDERAL COMMUNICATIONS COMMISSION

Jay Keithley, Deputy Chief

> Consumer & Governmental Affairs Bureau

[^1]: Request for Waiver of Hearing Aid-Compatibility and Volume Control
    Requirements in 47 C.F.R § 68.316 and 47 C.F.R § 68.317 for
    Panasonic 2.4 GHz FHSS Cordless Telephone with Bone Conduction Type
    Ear-Piece, Model KX-TG2388(xx), (April 19, 2005) (*Panasonic Request
    for Waiver*).

[^2]: 47 C.F.R. §§ 68.4 & 68.316.

[^3]: 47 C.F.R. §§ 68.6 & 68.317.

[^4]: *Panasonic Request for Waiver* at 1.

[^5]: Part 68 is intended to prevent harm to the PSTN from the
    connection of terminal equipment and associated wiring. 47 C.F.R. §
    68.1. Pursuant to Part 68, all terminal equipment that may be
    connected to the telephone network must meet the technical
    requirements of both Part 68 and those published by the
    Administrative Council for Terminal Attachments (ACTA) as required
    in Sections 68.7, 68.102, and subpart C of Part 68 of the
    Commission's rules. *See* 47 C.F.R. §§ 68.7, 68.102; 47 C.F.R.
    Subpart C.

[^6]: TCBs are equipment test laboratories certified by the Commission
    pursuant to Sections 68.160 and 68.162 of the Commission's rules to
    approve terminal equipment for connection to the telephone network.
    Each TCB has its own application procedure and operates
    independently of the Commission. In addition, bodies outside the
    United States are also permitted to approve equipment. *See* 47
    C.F.R. §§ 68.160(c), 162.

[^7]: SDOC procedures are set forth in Sections 68.320 -- 68.353 of the
    Commission's rules. 47 C.F.R. §§ 68.320 -- 68.353.

[^8]: 47 C.F.R. § 1.3.

[^9]: 47 C.F.R. § 68.5.

[^10]: *Id.*

[^11]: *FPC v Texaco, Inc.*, 377 U.S. 33, 39 (1964).

[^12]: 47 C.F.R. § 1.3.

[^13]: *FPC v Texaco, Inc.*, 377 U.S. 33, 39 (1964).

[^14]: *Citizens to Preserve Overton Park, Inc., v. Volpe*, 401 U.S.
    402, 416 (1971).

[^15]: *WAIT Radio v FCC*, 418 F.2d 1153, 1157 (D.C. Cir. 1969).

[^16]: *Northeast Cellular Telephone Company, L.P. v FCC*, 897 F.2d
    1164, 1166 (D.C. Cir. 1990).

[^17]: *See* 47 C.F.R. § 1.3; *Part 68 Waiver Request of Alameda
    Engineering Inc., et al,* Order, DA 95-2058*,* 10 FCC Rcd 12135,
    12139 (1995).

[^18]: *FCC Seeks Comment on Panasonic Corporation of North America's
    Request for Waiver of Hearing Aid-Compatibility and Volume Control
    Requirements for its Panasonic 2.4 GHz FHSS Cordless Telephone with
    Bone Conduction Type Ear Piece*, CC Docket No. 87-124, Public
    Notice, DA 05-1683 (June 17, 2005).

[^19]: Comments were filed by Panasonic Corporation of North America
    (Panasonic) (June 27, 2005), Self Help for Hard of Hearing People
    (SHHH) (June 27, 2005), and Tennessee Regulatory Authority (TRA)
    (June 27, 2005).

[^20]: Panasonic Comments at 2.

[^21]: Panasonic Comments at 2.

[^22]: Panasonic Comments at 2. Panasonic also notes that though the
    technical standards for hearing aid compatibility are not met in
    their field testing, the model has been tested by persons who use
    hearing aids with positive results. *Id.* SHHH also tested the model
    with a small number of individuals who wear hearing aids and had
    similar positive results, though they note their sample size was
    rather small. SHHH Comments at 2.

[^23]: Panasonic Comments at 3. Panasonic further notes that "the base
    unit does have volume control buttons for speakerphone mode; and the
    handset unit itself has a volume control button for bone conduction
    mode." *Id.*

[^24]: *See* *Panasonic Request for Waiver* at 1.

[^25]: *Panasonic Request for Waiver* at 1.

[^26]: *Id.*

[^27]: *Id.*

[^28]: SHHH Comments at 1.

[^29]: SHHH Comments at 2.

[^30]: *Id.*

[^31]: SHHH Comments at 3.

[^32]: *Id*. Panasonic, in its request for waiver, had referred to its
    target audience as "transmission hearing impaired people."
    *Panasonic Request for Waiver* at 1. In their comments Panasonic
    explained that this term "is intended to indicate that this added
    feature \[bone conduction\] enables sound vibration to reach the
    inner ear's auditory nerve directly by bone conduction." Panasonic
    Comments at 2.

[^33]: TRA Comments at 1.

[^34]: *Id*.