**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | WT Docket No. 01-309         |
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| Section 68.4(a) of the           | ** | RM-8658                      |
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| Governing Hearing Aid-Compatible | *) |                              |
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**REPORT AND ORDER**

**Adopted: July 10, 2003 Released: August 14, 2003**

By the Commission: Chairman Powell, Commissioner Abernathy, Commissioner
Copps, Commissioner

Martin, and Commissioner Adelstein issuing separate statements.

[I. introduction 2](#introduction)

[II. EXECUTIVE SUMMARY 2](#executive-summary)

[III. background 2](#background)

[A. Hearing Aids and Wireless Phones
2](#hearing-aids-and-wireless-phones)

[B. The HAC Act and Existing Commission Rules
2](#the-hac-act-and-existing-commission-rules)

[C. Efforts to Facilitate Wireless Accessibility
2](#efforts-to-facilitate-wireless-accessibility)

[D. Technical Description of Hearing Aids and Digital Wireless Phones
2](#technical-description-of-hearing-aids-and-digital-wireless-phones)

[IV. analysis of STATUTORY criteria 2](#analysis-of-statutory-criteria)

[A. Adverse Effect on Hearing Impaired Individuals
2](#adverse-effect-on-hearing-impaired-individuals)

[B. Public Interest 2](#public-interest)

[C. Technological Feasibility 2](#technological-feasibility)

[D. Marketability 2](#marketability)

[V. requirements for hearing aid compatibility of wireless phones
2](#requirements-for-hearing-aid-compatibility-of-wireless-phones)

[A. Adoption of ANSI C63.19 Performance Levels as the Applicable
Technical Standard
2](#adoption-of-ansi-c63.19-performance-levels-as-the-applicable-technical-standard)

[B. Implementation Requirements 2](#implementation-requirements)

[C. Labeling, Reporting, and Outreach
2](#labeling-reporting-and-outreach)

[D. Enforcement 2](#enforcement)

[VI. Procedural Matters 2](#procedural-matters)

[A. Regulatory Flexibility Act 2](#regulatory-flexibility-act)

[B. Paperwork Reduction Act 2](#paperwork-reduction-act)

[C. Accessible Formats 2](#accessible-formats)

[VII. Ordering Clauses 2](#ordering-clauses)

APPENDIX A -- List of Commenters and Reply Commenters

APPENDIX B -- Final Regulatory Flexibility Analysis

APPENDIX C -- Final Rules

# introduction

1.  In this Report and Order, we modify the exemption for wireless
    phones under the Hearing Aid Compatibility Act of 1988 (HAC Act)[^1]
    to require that digital wireless phones be capable of being
    effectively used with hearing aids. We find that modifying the
    exemption in the manner described below will extend the benefits of
    wireless telecommunications to individuals with hearing disabilities
    -- including emergency, business, and social communications --
    thereby increasing the value of the wireless network for all
    Americans.

2.  In order to make digital wireless phones accessible to individuals
    who use hearing aids or have cochlear implants, we find that digital
    wireless phone manufacturers and service providers should be
    required to take steps to reduce the amount of interference emitted
    from digital wireless phones and to provide the internal capability
    for telecoil coupling. In taking this action, we hope to enable
    every American to have access to digital wireless
    telecommunications. Because we find that the statutory requirements
    for modifying the exemption have been met, and because doing so will
    serve the important public interest in preserving access to wireless
    telecommunications for individuals with hearing disabilities, we
    conclude that the exemption should be modified to the extent
    described below.

# EXECUTIVE SUMMARY

3.  In this Order, we take the following actions:

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(1) adopt certain performance levels set forth in a technical standard
    established by the American National Standards Institute (ANSI) as
    the applicable technical standard for compatibility of digital
    wireless phones with hearing aids;

(2) require certain digital wireless phone models to provide reduced
    radio frequency (RF) interference (*i.e.,* meet a "U3" rating under
    the ANSI standard), and require certain digital wireless phone
    models to provide telecoil coupling capability (*i.e.* meet a "U3T"
    rating under the ANSI standard);

(3) require, within two years, each digital wireless phone manufacturer
    to make available to carriers and require each carrier providing
    digital wireless services to make available to consumers at least
    two handset models for each air interface it offers which provide
    reduced RF emissions ("U3" rating);

(4) require each Tier I wireless carrier providing digital wireless
    services to make available to consumers within two years at least
    two handset models for each air interface it offers which provide
    reduced RF emissions ("U3" rating) or 25 percent of the total number
    of phone models it offers, whichever is greater;

(5) require, within three years, each digital wireless phone
    manufacturer to make available to carriers and require each carrier
    providing digital wireless services to make available to consumers
    at least two handset models for each air interface it offers which
    provide telecoil coupling ("U3T" rating);

(6) adopt a *de minimis* exception for certain digital wireless phone
    manufacturers and carriers;

(7) encourage digital wireless phone manufacturers and service providers
    to offer at least one compliant handset that is a lower-priced model
    and one that has higher-end features;

(8) require 50 percent of all digital wireless phone models offered by a
    manufacturer or carrier to be compliant with the reduced RF
    emissions requirements by February 18, 2008;

(9) require wireless carriers and digital wireless handset manufacturers
    to report semiannually (every six months) on efforts toward
    compliance during the first three years, then annually thereafter
    through the fifth year of implementation;

(10) require manufacturers to label packages containing compliant
     handsets and to make information available in the package or
     product manual, and require service providers to make available to
     consumers the performance ratings of compliant phones;

(11) commit the Commission staff to deliver a report to the Commission
     shortly after three years from the effective date of this Order to
     examine the impact of these requirements, and which will form the
     basis for the Commission to initiate a proceeding soon after the
     report is issued to evaluate whether to increase or decrease the
     2008 requirement to make 50 percent of phone models with reduced RF
     emissions, whether to adopt implementation benchmarks beyond 2008,
     and whether to otherwise modify the implementation requirements;

(12) encourage hearing aid manufacturers to label their
     pre-customization products according to the ANSI standard; and

(13) deny the petition of Myers Johnson, Inc., for revision of section
     24.232 as it relates to directional wireless phone antennas.

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4.  We take these actions to facilitate the Congressional goal of
    ensuring access to telecommunications services for individuals with
    hearing disabilities. In light of the rising number of calls to
    emergency services placed by wireless phone users, preserving access
    to wireless telecommunications for individuals with hearing
    disabilities is critical. In addition to the public safety benefits,
    these actions will also extend to individuals with hearing
    disabilities the social, professional, and convenience benefits
    offered by wireless telecommunications as well. In light of our
    society's increased reliance on wireless phones and the growing
    trend among wireless carriers to move away from analog services in
    favor of more efficient, feature-rich digital services, these steps
    will ensure that individuals with hearing disabilities continue to
    enjoy access to wireless telecommunications devices and services.

# background

## Hearing Aids and Wireless Phones

5.  Approximately one in ten Americans -- 28 million -- has some level
    of hearing loss, and this proportion increases to one in three among
    the population of people over 65 years of age.[^2] As the median age
    of the population continues to rise, the proportion of Americans
    with hearing loss will likely increase. Approximately six million
    Americans use hearing aids to improve their hearing.[^3] Hearing
    aids operate in one of two modes -- acoustic coupling or telecoil
    coupling. Hearing aids operating in acoustic coupling mode receive
    and amplify all sounds surrounding the user, both desired sounds,
    such as a telephone's audio signal, as well as unwanted ambient
    noise. Hearing aids operating in telecoil coupling mode avoid
    unwanted ambient noise by turning off the microphone and receiving
    only magnetic fields generated by telecoil-compatible
    telephones.[^4] In the United States, about 25-30 percent of hearing
    aids contain telecoils, which generally are used by individuals with
    profound hearing loss.[^5] External accessories designed to generate
    a magnetic field to enable telecoil coupling help some hearing aid
    users, but can be cumbersome and are not usable by all hearing aid
    users.[^6]

6.  Although analog wireless phones do not generally cause interference
    problems for hearing aid users,[^7] digital wireless phones can
    cause interference to hearing aids and cochlear implants because of
    electromagnetic energy emitted by the phone's antenna, backlight, or
    other components. This interference can be significant enough to
    prevent individuals with hearing aids or cochlear implants from
    using digital wireless phones and services. In addition, most
    wireless phones do not internally provide the capability to
    inductively couple with hearing aids containing telecoils, as
    wireline phones do.[^8]

7.  Over the course of the last several years, wireless phones and
    services have increasingly become mass market consumer devices and
    services. As the Commission reported in its *Eighth Annual CMRS
    Competition Report (Eighth Competition Report)*, penetration rates
    for wireless subscribers (as of December 2002) were approximately 49
    percent of the United States population, and more than 55 percent of
    Americans between the ages of 15 and 59 have wireless phones.[^9] In
    addition, while still relatively small in number, more and more
    consumers are beginning to view their wireless phone as their
    primary phone. As reported in the Commission's *Seventh Competition
    Report*, three to five percent of wireless customers use their
    wireless phone as their only phone, and according to a USA
    Today/CNN/Gallup poll, almost one in five wireless telephony users
    view their wireless phone as their primary phone.[^10] And the
    number of customers subscribing to digital wireless service now
    makes up approximately 88 percent of all wireless subscribers, with
    125 million subscribing to digital services and only 17 million
    subscribing to analog service.[^11] In contrast to analog, digital
    technology provides better sound quality and increases spectral
    efficiency which, in turn, has permitted companies to offer calling
    plans with large buckets of relatively inexpensive minutes, free
    enhanced services such as voicemail and caller ID, and wireless data
    and mobile Internet offerings.[^12] In addition, 30 to 50 percent of
    calls to 911 for emergency services now come from wireless
    phones.[^13] Thus, as wireless service has evolved to become
    increasingly more important to Americans' safety and quality of
    life, the need for individuals with hearing disabilities to have
    access to wireless services has become critical. As Congress and the
    Commission have recognized, individuals with disabilities need
    access to telecommunications service to ensure they can more fully
    participate in a society that increasingly relies on these services.

## The HAC Act and Existing Commission Rules

8.  [HAC Act.]{.underline} Understanding that telecommunications
    services are an essential component of our daily lives, Congress
    enacted the HAC Act in 1988 to provide access to telecommunications
    services for individuals with hearing disabilities. In adopting the
    HAC Act, the House of Representatives Report stated that "the
    inability to use all telephones imposes social and economic costs on
    not only the hearing impaired, but the whole nation."[^14] It
    further stated that "the hearing impaired should have access to
    every telephone like the non-hearing impaired."[^15] Therefore, the
    HAC Act was intended to enable individuals with hearing disabilities
    to use virtually every telephone.[^16] Through the HAC Act, Congress
    charged the Commission with "establishing regulations as are
    necessary to ensure reasonable access to telephone service by
    persons with impaired hearing."[^17] Specifically, the HAC Act
    required the Commission to establish regulations to ensure that the
    enumerated "essential phones" would provide "internal means" for
    effective use of hearing aids designed to be compatible with
    telephones that meet established technical standards for hearing aid
    compatibility.[^18] In addition, the statute required nearly all
    telephones manufactured in the United States (other than for export)
    or imported for use in the United States after August 16, 1988, to
    be hearing aid compatible as defined in the statute.[^19]

9.  Congress specifically exempted certain telephones, including
    telephones used with public mobile service (wireless phones), from
    the "essential phones" designation. Congress considered the exempted
    phones to be "secondary," meaning that such phones were viewed at
    the time to be complements, as opposed to substitutes, for the
    "essential phones" it identified.[^20] At the time of the HAC Act's
    adoption, wireless phones were primarily business tools. However,
    members of Congress realized that wireless phones may play an
    increasingly vital role in our society. To make certain that the HAC
    Act kept pace with the evolution of telecommunications, it granted
    the Commission a means by which to revoke or limit the exemption for
    wireless phones. Thus, the statute directs the Commission to
    periodically assess the appropriateness of continuing the
    exemptions.[^21] Specifically, the statute requires us to "revoke or
    otherwise limit" the exemptions if we determine that

##### such revocation or limitation is in the public interest;

##### continuation of the exemption without such revocation or limitation would have an adverse effect on hearing-impaired individuals;

##### compliance with the requirements of \[the rule\] is technologically feasible for the telephones to which the exemption applies; and

##### compliance with the requirements of \[the rule\] would not increase costs to such an extent that the telephones to which the exemption applies could not be successfully marketed.[^22]

10. [FCC Rules.]{.underline} The Commission initially adopted rules
    implementing the HAC Act in 1989.[^23] In 1992, the Commission
    expanded the HAC requirements to apply to telephones in particular
    establishments, such as hospitals, hotels and motels, prisons, and
    workplaces.[^24] In 1996, the Commission adopted regulations
    designed to ensure that individuals with hearing disabilities would
    be able to use "virtually all wireline phones in workplaces,
    confined settings, and hotels and motels."[^25] The Commission
    adopted rules relating to volume control to ensure that telephones
    were more accessible for those that use hearing aids and others with
    hearing impairments.[^26] In addition, the Commission required
    telecoil compatibility of all telephones that are required to be
    hearing aid compatible.[^27] Specifically, the Commission required
    that, except for telephones used with public mobile services,
    telephones used with private radio services, and secure telephones,
    every telephone manufactured in the United States (other than for
    export) or imported for use in the United States must be hearing aid
    compatible as defined in section 68.316 of the Commission's
    rules.[^28] Finally, the Commission required all telephones with
    telecoil compatibility to be labeled with the letters "HAC," to more
    readily identify hearing aid-compatible phones to consumers.[^29]

11. In addition to its rules on technical standards and requirements for
    compliance, the Commission clarified the status of the HAC Act in
    light of the adoption by Congress in the intervening years of the
    Americans with Disabilities Act of 1990[^30] and section 255 of the
    Telecommunications Act of 1996.[^31] In the *Wireline HAC Order*,
    the Commission determined that the protections afforded individuals
    with hearing disabilities under the HAC Act provided greater
    protection than those afforded under the "reasonable accommodation"
    standard provided by the ADA, and thus as stated in the ADA, the HAC
    Act was not intended to be invalidated. [^32] With regard to section
    255 of the 1996 Act, the Commission found that while this section
    shares a similar goal with the HAC Act, namely access to the
    telecommunications network by individuals with disabilities, the HAC
    Act remains binding law by operation of section 601 of the 1996 Act.
    Section 601 states that the 1996 Act "and amendments made by this
    Act shall not be construed to modify, impair, or supersede Federal,
    State, or local laws unless expressly so provided in such Act or
    amendments."[^33] The Commission concluded that the HAC Act remained
    unaltered.[^34]

## Efforts to Facilitate Wireless Accessibility

12. In 1995, the HEAR-IT NOW Coalition (HEAR-IT NOW) filed a petition in
    which it argued that a limited revocation of the exemption for
    digital wireless phones was warranted under the four criteria.[^35]
    HEAR-IT NOW appended to its petition studies demonstrating
    interference experienced by hearing aid users when attempting to
    use, or even simply standing near, a Global System for Mobile
    Communications, or GSM, wireless telephone.[^36] HEAR-IT NOW argued
    that such interference prevents individuals who are hard of hearing
    from using Personal Communications Service (PCS) devices, thus
    excluding them from the next phase of the telecommunications
    revolution.[^37]

13. In response to the HEAR-IT NOW petition, the Commission established
    a steering committee and working groups to develop and report to the
    Commission on possible solutions to problems faced by individuals
    with hearing disabilities in using digital wireless telephones. That
    committee, at the direction of the Commission, organized the Hearing
    Aid Compatibility and Accessibility to Digital Wireless
    Telecommunications Summit, which convened in January 1996.[^38]
    Summit participants, who included representatives of digital
    wireless phone manufacturers and other interested parties, later
    submitted a report to the Commission on the agreements of the
    parties.[^39]

14. As detailed in the report, the participants agreed that interface
    and accessibility problems could only be solved through a
    combination of both modifications to digital wireless phone designs
    and improvements in hearing aid immunity to RF emissions.[^40]
    Additionally, the participants recognized that educating individuals
    with hearing disabilities on the compatibility issues could help
    foster understanding and encourage access to wireless
    telecommunications.[^41] The participants also recognized that to
    promote consumer choice, they would need to pursue a range of
    options, given the range of levels of hearing loss and the range of
    means to address that loss.[^42] Moreover, the participants agreed
    that further research would be needed to identify objective levels
    of interference that hearing aid users could tolerate.[^43] They
    also agreed that the results of that further research would then be
    used to establish a preliminary matrix with recommended performance
    targets for electromagnetic emission and immunity levels that would
    serve as an interim benchmark.[^44]

15. Concurrent with the work of the steering committee, the University
    of Oklahoma began research into the interaction between hearing aids
    and digital wireless phones. The study, which tested hearing aids
    manufactured for eighteen participants with hearing disabilities,
    sought to determine the levels of interference from digital wireless
    phones to hearing aids and to relate subjective ratings of speech
    intelligibility, usability, and annoyance to those interference
    levels. Results of the study support the use of acoustic
    measurements of immunity as a basis for a standard. The results also
    demonstrate the existence of a number of digital wireless phones
    that can be used successfully with hearing aids. Six of the eighteen
    hearing aids experienced no interference or only very slight
    interference at the highest power level when used with both 800 MHz
    and 1900 MHz digital wireless phones.[^45] These results served as
    the basis for the development and adoption of a voluntary standard
    by ANSI in April 2001, namely, the "American National Standard for
    Methods of Measurement between Wireless Communication Devices and
    Hearing Aids ANSI C63.19-2001" (ANSI C63.19).

16. ANSI C63.19, which was developed by a Task Group that included
    representatives of several wireless phone manufacturers, wireless
    carriers, representatives of the FCC and FDA, and other interested
    parties, provides guidance on measuring digital wireless phones' RF
    emission levels and hearing aids' immunity levels to the RF
    emissions, and specifies rating categories for different levels of
    RF emissions and immunity. The RF rating categories are intended to
    assist hearing aid users with the selection of a digital wireless
    phone that will be usable with a particular hearing aid. In
    addition, ANSI C63.19 provides guidance on measuring digital
    wireless phones' desired and undesired magnetic field emission
    levels and hearing aids' immunity to undesired magnetic fields, and
    specifies rating categories for different levels of magnetic field
    emissions and immunity. The magnetic field rating categories are
    intended to assist hearing aid users in choosing a digital wireless
    phone that can be successfully operated with a particular telecoil-
    or acoustic coupling-capable hearing aid.[^46]

17. In October 2000, while the ANSI C63.19 standard was still awaiting
    final approval, the Wireless Access Coalition (WAC) formally
    requested that the Commission reopen the petition for rulemaking
    filed in 1995 by HEAR-IT NOW, seeking to revoke the exemption for
    PCS devices from the Commission's rule requiring telephones to be
    hearing aid compatible.[^47] In its petition, WAC noted the
    qualified success of the steering committee and the working groups
    to bring about consensus on certain issues and the development of
    ANSI C63.19.[^48] WAC, however, also expressed its disappointment in
    progress on the "central problem" of digital wireless phones'
    interference with hearing aids.[^49] WAC reiterated its belief in
    the need for the Commission to address this central problem quickly,
    noting that PCS providers continue to offer more feature-rich
    services at lower prices, as compared to their analog offerings,
    over their digital PCS networks.[^50] If not addressed, WAC is
    concerned that hearing aid users will find themselves marginalized
    from mainstream communications, resulting in a regression to more
    dependent, less productive lives.[^51]

18. In 2001, responding to both WAC's formal request and the HAC Act's
    requirement that the Commission periodically review the
    appropriateness of the exemption, the Commission released a Notice
    of Proposed Rulemaking (*Notice*) to reexamine the wireless phone
    exemption provided by the HAC Act.[^52] In the *Notice*, the
    Commission sought comment on issues related to requirements of the
    statute for repeal or limiting of the HAC Act exemption. The
    Commission sought comment on operation of the requirements of the
    HAC Act as they relate to establishment of technical standards and
    the meaning of the phrase "internal means."[^53] Additionally, the
    Commission sought comment on the limitations on compatibility
    imposed by the statute in requiring that telephones only be
    compatible with "hearing aids that are designed to be compatible
    with telephones that meet established technical standards for
    hearing aid compatibility."[^54]

19. The Commission also sought comment on whether the four criteria in
    the statute, which must be met before the Commission can revoke or
    limit the wireless phone exemption, have been met. Based on the
    decline in analog service offerings coupled with the rise in more
    efficient, lower-cost, and feature-rich digital offerings, the
    Commission tentatively concluded that limiting the exemption would
    serve the public interest.[^55] The Commission also tentatively
    concluded that continuation of the exemption without limitation
    would have an adverse effect on individuals with hearing
    disabilities. The Commission based its tentative conclusion on the
    growing prevalence of digital wireless phones and the declining
    availability of analog phones and service.[^56] It further noted
    that access to applications that are possible through use of a
    digital wireless phone, such as short messaging service, e-mail, and
    Internet access would allow the benefits of these features to be
    experienced by individuals with hearing disabilities.[^57]

20. Regarding the technological feasibility criterion in the HAC Act,
    the Commission sought comment on ways in which hearing aid
    manufacturers, digital wireless phone manufacturers, and service
    providers could work together to develop long-term solutions to
    compatibility problems.[^58] The Commission also sought comment on
    whether a "pairing" approach, recommended by CTIA, would satisfy the
    requirements of the statute.[^59] The Commission further sought
    comment on whether the costs of compliance with the HAC Act would
    increase costs to such an extent that the digital wireless phones
    could not be successfully marketed.[^60] Finally, the Commission
    sought comment on the costs and benefits to all telephone users of
    requiring compliance,[^61] as well as whether full revocation of the
    exemption or a limited exemption was warranted.[^62]

21. Recognizing the efficiencies that wireless carriers can gain from
    using digital technology, the Commission's *Analog Sunset Order*
    established a process by which carriers may discontinue providing
    analog service.[^63] In that Order, the Commission found that it was
    appropriate to eliminate the analog requirement contained in our
    rules because of the competitive nature of wireless telephony. In
    addition, the Commission believed that the spectral efficiency that
    would be gained supported elimination of the analog service
    requirement.[^64] The Commission, however, also recognized that
    analog service has offered individuals with hearing disabilities
    access to wireless telephony, and therefore immediate removal of the
    analog requirement could create access barriers to wireless
    telephony for individuals with hearing disabilities.[^65] It
    therefore decided to adopt a sunset period of five years to allow
    carriers to resolve problems associated with access to digital
    wireless service by individuals with hearing disabilities. To
    monitor the adequacy of access to wireless telephony, the Commission
    required certain nationwide wireless carriers to report on the
    availability and usability of hearing aid-compatible digital
    devices.[^66]

## Technical Description of Hearing Aids and Digital Wireless Phones

22. A hearing aid is an electronic device that amplifies weak sounds and
    transmits them through a small speaker. Hearing aids come in several
    models, behind-the-ear (BTE), in-the-ear (ITE), in-the-canal (ITC),
    and completely-in-the-canal (CIC). A hearing aid's components
    include a microphone, amplifier, and speaker. Additionally, some
    models have a coil of wire known as a telecoil or "t-coil." Hearing
    aids operate in one of two coupling modes, acoustic or inductive
    (known as "telecoil mode"), with the latter typically being employed
    by those with profound hearing loss. As we have noted, approximately
    25-30 percent of hearing aids sold in the United States include
    telecoils.[^67] In acoustic coupling mode, the microphone picks up
    surrounding sounds, desired and undesired, and converts them into
    electrical signals. The electrical signals are amplified as needed
    and then converted back into sound by the hearing aid speaker. In
    telecoil mode, with the microphone turned off, the telecoil picks up
    the audio signal-based magnetic field generated by the voice coil of
    a dynamic speaker in hearing aid-compatible telephones, audio loop
    systems, or powered neck loops. The hearing aid converts the
    magnetic field into electrical signals, amplifies them as needed,
    and converts them back into sound via the speaker. Using a telecoil
    avoids the feedback that often results from putting a hearing aid up
    against a telephone earpiece, can help prevent exposure to over
    amplification, and eliminates background noise, providing improved
    access to the telephone.[^68]

23. Cochlear implants bypass the external and middle ears by using
    electrical stimulation of electrodes implanted in the cochlea to
    reintroduce the signals carried by auditory nerve fibers to the
    brain. With a cochlear implant, a microphone in a headpiece worn at
    the ear is connected via a thin cable to a processor that is worn on
    the belt, carried in a pocket or, in some models, worn at ear level.
    The processor translates the signal from the microphone into digital
    signals that are sent to a transmitter (in some models, the
    transmitter and microphone are in the same piece). The transmitter,
    which is held by a magnet on the side of the head behind the ear,
    sends the coded signals via radio waves through the skin to the
    cochlear implant. The signals are directed to auditory nerve fibers
    using an array of electrodes implanted in the deaf patient's cochlea
    where they elicit patterns of nerve activity that the brain
    interprets as sound.[^69] Some cochlear implants are now being
    manufactured with built-in telecoils, which could enable a user to
    hear more clearly when using a hearing aid-compatible telephone,
    neck loop, or in the vicinity of an audio loop.[^70]

24. Individuals with hearing disabilities that use hearing aids or
    cochlear implants, whether only capable of acoustic coupling or also
    capable of telecoil coupling, may encounter several problems when
    using digital wireless telephones. The pulsing nature of RF signals
    from digital wireless phones can interfere with a hearing aid
    operated in acoustic or telecoil coupling mode, preventing
    acceptable use by the hearing aid user. This form of electromagnetic
    interference (EMI), which is produced as a result of pickup and
    demodulation of the RF field by the hearing aid circuitry, will
    generate noise in hearing aids if detected during telecoil
    operation, and may even introduce interference to hearing aids
    operated in acoustic coupling mode. In addition, whether the hearing
    aid is being operated in acoustic or telecoil coupling mode,
    interference from electromagnetic energy emitted as a result of a
    wireless phone's display and keyboard backlight operation can cause
    interference that results in the hearing aid user experiencing
    distracting and sometimes painful buzzing noises.[^71] Even if a
    wireless phone produces high audio volume or a strong magnetic field
    for acoustic or telecoil coupling, respectively, the interference
    described above could be overpowering and prevent the hearing aid
    user from using the digital wireless phone.[^72]

25. Changes to hearing aids have been made to increase these devices'
    ability to block electromagnetic energy, which is referred to as
    immunity. Hearing aid manufacturers have focused on hardening the
    components in the hearing aid, which has resulted in improved
    immunity to both RF and non-RF sources of interference.[^73] In
    addition, the advances that are being made in digital hearing aids,
    which often do not experience interference issues, offer an
    opportunity to help control the interference that users of analog
    hearing aids may experience.[^74]

# analysis of STATUTORY criteria

26. We next set out our analysis of the four criteria Congress provided
    the Commission to determine whether revocation or limiting of the
    HAC Act exemption for wireless phones is warranted. In the HAC Act,
    Congress specifically exempted phones used with public mobile
    services and phones used with private wireless services from having
    to be hearing aid compatible.[^75] We note, at the outset, that our
    rules provide that public mobile services are air-to-ground
    radiotelephone services, cellular radio telecommunications services,
    offshore radio services, rural radio services, public land mobile
    telephone services, and other common carrier radio communications
    services covered by Part 22 of our rules.[^76] In 1994, Congress
    amended section 332 of the Communications Act of 1934, replacing
    private and public mobile service categories with two new categories
    of mobile services, commercial mobile radio service (CMRS) and
    private mobile radio service (PMRS), and treating CMRS providers,
    which includes PCS and cellular service providers, as common
    carriers.[^77] As we have done in the context of other proceedings,
    we conclude that the rules we adopt in this Order apply to
    telephones used with all wireless systems to the extent that they
    offer real-time, two-way switched voice service that is
    interconnected with the public switched network, and utilize an
    in-network switching facility which enables the provider to reuse
    frequencies and accomplish seamless handoffs of subscriber
    calls.[^78] Therefore, in addition to telephones used with broadband
    PCS,[^79] we apply these rules to telephones used with other public
    mobile services, including Cellular Radio Telephone Service,[^80] as
    well as Geographic Area Specialized Mobile Radio (SMR) Services and
    Incumbent Wide Area SMR Licensees in the 800 MHz and 900 MHz
    bands.[^81]

27. The legislative history of the HAC Act indicates that Congress
    provided the exemption to wireless phones because it viewed them as
    complements, not substitutes, for wireline telephones.[^82] Congress
    authorized the Commission to revoke or limit that exemption upon a
    finding that: 1) continuation of the exemption would have an adverse
    effect on hearing impaired individuals; 2) revocation or limiting of
    the exemption would be in the public interest; 3) compliance with
    the HAC Act requirements is "technologically feasible;" and 4)
    compliance would not increase costs of wireless phones to such an
    extent that they could not be successfully marketed.

28. We conclude that the HAC Act applies to both reduction of RF
    interference to hearing aids as well as providing inductive coupling
    capability for the hearing aid's telecoil. In the legislative
    history of the HAC Act, Congress stated that the Act does not tie
    manufacturers to a particular technology and inhibit future
    development; instead, it sought only to require that telephones be
    compatible.[^83] Congress specifically noted that, in an effort to
    avoid mandating any particular type of technology, "induction
    coupling and electromagnetic fields are not even mentioned" in the
    Act.[^84] This legislative history, coupled with the statutory
    language instructing the Commission to establish such regulations as
    are necessary to ensure reasonable access to telephone service by
    individuals with hearing disabilities,[^85] compels our conclusion
    in this Order that both the reduction of RF interference and the
    provision of inductive coupling for the hearing aid's telecoil are
    necessary to ensure wireless phone compatibility with hearing aids.

29. For the reasons set forth below, we find that continuation of the
    exemption would have an adverse effect on individuals with hearing
    disabilities. Furthermore, we find that modifying the wireless phone
    exemption is in the public interest. In addition, we find that it is
    both technologically feasible to require compliance in the manner
    detailed in this Order, and that requiring such compliance will
    ensure that the digital wireless phones subject to this Order are
    marketable.[^86] And, finally, to the extent the modification of the
    exemption from the HAC Act for wireless phones facilitates usage by
    hearing aid users, we expect that individuals with cochlear implants
    will likewise benefit.

## Adverse Effect on Hearing Impaired Individuals

30. Based on the record in this proceeding, we conclude that continuing
    the exemption afforded to wireless phones under the HAC Act would
    have an adverse effect on individuals with hearing disabilities.
    Consumers who use hearing aids or cochlear implants indicate they
    have had difficulty finding wireless phones they can use without
    suffering from annoying and sometimes painful interference, without
    resorting to expensive and cumbersome external attachments.[^87]
    Consumers state that it is becoming very difficult to find analog
    wireless phones and services, and they are unable to use most
    digital wireless phones because of the resulting interference.[^88]
    By not being able to take advantage of most newer, digital wireless
    phones and services, hearing aid users assert they cannot take
    advantage of the attractive pricing and service plans available to
    other consumers, many of which include free or reduced-price phones,
    because the phones offered do not work with their hearing aids.[^89]
    Some consumers point out that their lack of ability to use a digital
    wireless phone causes them problems in their employment,
    particularly since many employers now rely on digital phones and
    services to stay in contact with employees in the field.[^90] A few
    consumers reported difficulty in finding a phone that works with
    their hearing aids because they were unable to test the phone before
    purchasing it.[^91] Some consumers expressed a desire to use a
    wireless phone for emergency use while away from home, but are
    unable to find one they can use, which they believe puts them at
    greater risk than non-hearing aid users since they are unable to
    call 911 or for automotive assistance using a digital wireless
    phone.[^92]

31. Consumer advocacy groups assert that the market has not responded to
    the needs of individuals with hearing disabilities because of the
    relatively small size of the population of consumers that would
    benefit from hearing aid compatibility features in digital wireless
    phones (as compared to the size of the total population of digital
    wireless phone users).[^93] However, these groups also note that the
    number of Americans with hearing disabilities is growing, and that
    the market for wireless phones and services would be increased if
    wireless phone manufacturers would improve access for hearing aid
    and cochlear implant users.[^94]

32. Some wireless industry commenters contend that removal of the
    exemption for wireless phones would not solve the hearing aid
    compatibility problem because it would not address issues associated
    with interference.[^95] A few commenters argue that the number of
    people who would benefit from removal of the exemption is relatively
    small, since such a small percentage of people have telecoils in
    their hearing aids, and many of them do not even use the telecoil
    functionality.[^96] Because telecoil coupling is typically used by
    individuals with more severe hearing loss, these are the people who
    rely upon them the most for telecommunications. Our rules should
    address the needs of these users since they are the most adversely
    affected by the exemption, despite the fact that they make up a
    minority of hearing aid users. In addition, we do not simply remove
    the exemption for wireless phones and subject these phones to the
    wireline HAC requirements which, essentially, mandate only telecoil
    coupling. Our modification of the exemption will benefit people who
    use their hearing aids for both inductive coupling and acoustic
    coupling, because our rules will require both reduction of RF
    interference to hearing aids as well as providing inductive coupling
    capability for the hearing aid's telecoil. As a result, our rules
    could benefit the entire population of hearing aid users, which is
    estimated to be approximately six million people.

33. We are not persuaded by the other arguments against modifying the
    exemption. Some commenters claim that the compatibility problem
    should be solved by only requiring hearing aid manufacturers to
    increase the immunity of hearing aids.[^97] However, this would not
    address the need for telecoil coupling capability and, while hearing
    aid immunity has been significantly improved in recent years, it
    does not appear to be possible to completely shield against all RF
    interference from digital wireless phones.[^98] In addition,
    contrary to the assertions of some industry commenters, we do not
    find the security concerns presented by providing telecoil coupling
    to be significant. [^99] Eavesdroppers would need to be within the
    magnetic field generated by the phone, which is typically about 12
    to 18 inches from the handset speaker.[^100]

34. While we recognize that the wireless industry has made some efforts
    to address the needs of individuals with hearing disabilities,[^101]
    we believe that maintaining the exemption for wireless phones from
    the HAC Act would adversely affect hearing aid users. In light of
    the migration of consumers to more efficient, feature-rich, and
    lower-cost digital wireless phones and services, we believe that
    maintaining the exemption for wireless phones would prevent hearing
    aid users from taking advantage of these devices and services. In
    addition, the market transition from analog to digital services,
    recognized by the Commission's decision to sunset the analog service
    requirements imposed on wireless carriers, could restrict the
    choices for telecommunications services that are available to
    individuals with hearing disabilities, unless the HAC Act's
    exemption for wireless phones is modified or eliminated.[^102] These
    constitute adverse effects that would be caused by continuing the
    wireless phone exemption from the HAC Act.

## Public Interest

35. Based on the record in this proceeding, and in light of the adverse
    effects of continuing the exemption described above, we conclude
    that the public interest is served by modifying the exemption
    afforded wireless phones under the HAC Act. As commenters to this
    proceeding have affirmed, greater access to digital wireless service
    for individuals with hearing disabilities will enable them to
    benefit from this technology, which has influenced Americans' work
    and social lives, and that benefit will inure to all consumers of
    telecommunications.[^103] In other orders, the Commission has
    recognized such benefits. For example, in its Order implementing
    section 255 of the Telecommunications Act, the Commission stated
    that ensuring greater access to a particular group of
    telecommunications consumers creates benefits that flow to all
    consumers of telecommunications services.[^104] Moreover, it is
    important to preserve access to wireless telecommunications for
    individuals with hearing disabilities, particularly in view of the
    public safety benefits offered by these services. Over the last 10
    years, there has been more than a 10-fold increase in the number of
    wireless 911 calls, and this trend is likely to continue.[^105] As
    the general public increasingly relies on wireless phones to obtain
    emergency services, individuals with hearing disabilities should
    also be able to take advantage of the safety benefits of wireless
    services by having access to digital wireless phones that work
    effectively with hearing aids.

36. The rise in use of digital wireless service is well documented. As
    the Commission noted in the *Eighth Competition Report*, digital
    technology is now dominant in the wireless telephone sector, with
    approximately 125 million subscribers, far surpassing the 17 million
    analog subscribers.[^106] Digital wireless technologies enable
    wireless service providers to more efficiently use their spectrum,
    which in turn allows them to offer their customers relatively
    inexpensive bundles of minutes, more enhanced services, such as text
    messaging, and wireless data and mobile Internet offerings.[^107]
    These offerings have allowed wireless telecommunications to evolve
    from what was once considered a complementary business service to a
    mass market consumer offering that delivers an essential service,
    telecommunications, through a platform that offers users the
    benefits of mobility and greater independence. Wireless services
    also offer users greater access to emergency services. As evidenced
    by the continued growth in the number of wireless subscribers,
    consumers are realizing these benefits, often considering their
    wireless phone to be their primary phone.[^108] For these reasons,
    access to digital wireless service for the country's approximately
    six million hearing aid users is necessary to facilitate their full
    participation in our society, and we therefore conclude that it is
    in the public interest that the exemption afforded to wireless
    phones under the HAC Act be modified. As the Commission has
    recognized in other proceedings, increasing the number of people
    connected to the telecommunications network makes the network more
    valuable to all of its users.[^109]

37. In addition to the benefits to hearing aid wearers that will accrue
    from modifying the exemption for wireless phones, we believe
    increased accessibility to digital wireless telecommunications will
    result in benefits for all consumers. Even people who do not wear
    hearing aids would benefit from the spectrum usage efficiencies
    realized by the increased use of digital wireless phones rather than
    the continued use of analog wireless phones.[^110] Also, measures to
    redirect RF energy could extend phone battery life for all
    users.[^111] In addition, the wireless industry would benefit from
    the business opportunity in serving the expanding market segment
    comprised of individuals with hearing disabilities, and employers of
    individuals with disabilities would benefit from improved
    communication with employees in the field. We also anticipate that,
    based on similarities between the experiences of cochlear implant
    users and hearing aid users when using digital wireless
    phones,[^112] any handset changes that are made as a result of
    modifying the exemption will likewise benefit cochlear implant
    users.[^113] In sum, the public interest would be served by
    modifying the HAC Act's wireless phone exemption.

## Technological Feasibility

38. Based on the record in this proceeding, we also find that it is
    technologically feasible for digital wireless phones to comply with
    the requirement that they be hearing aid compatible. Below, we
    describe some of the technological aspects involved in achieving
    compatibility between digital wireless phones and hearing aids, and
    we detail the various parts of the technological feasibility
    criterion to establish such a requirement.

39. [ANSI C63.19 Technical Standard.]{.underline} Fundamental to
    deciding to modify the exemption on grounds of technological
    feasibility is the requirement that there be an established
    technical standard.[^114] As discussed above, since 1996, the
    Commission, in conjunction with various industry participants and
    consumers, has been working to establish a technical standard that
    would allow digital wireless phones to work properly with hearing
    aids. One product of the HAC Summit of 1996 was the establishment of
    a technical working group, which led to the formation by ANSI C63 of
    Task Group C63.19.[^115] ANSI C63 charged the Task Group with
    developing a standard for methods of measurement and defining the
    limits for hearing aid compatibility and accessibility to wireless
    telecommunications.[^116] Task Group C63.19, which included wireless
    carriers, digital wireless handset manufacturers, and hearing aid
    manufacturers, as well as representatives from the FCC and Food and
    Drug Administration (FDA), prepared and adopted by an almost
    unanimous vote[^117] a standard that is predictive of the successful
    use of digital wireless phones with hearing aids.[^118]

40. To use a digital wireless phone with a hearing aid or cochlear
    implant in acoustic coupling mode, RF interference and other EMI
    from the wireless phone must be controlled. Based on recommended
    audio signal-to-interference ratios and other assumptions about
    wireless phones\' performance, ANSI C63.19 specifies ratings for
    digital wireless phones, U1 through U4, based on their RF emission
    levels, with U1 being the highest emissions and U4 the lowest
    emissions. The standard also provides a methodology for rating
    hearing aids from U1 to U4 based on their immunity to interference,
    with U1 being the least immune and U4 the most immune. To determine
    whether a particular digital wireless phone will not interfere with
    a particular hearing aid, the immunity rating of the hearing aid is
    added to the emissions rating of the wireless phone. A sum of 4
    would indicate that the wireless phone is usable; a sum of 5 would
    indicate that the wireless phone would provide normal use; and a sum
    of 6 or greater would indicate that the wireless phone would provide
    excellent performance with that hearing aid.[^119]

41. Reduced RF emissions are also needed to improve inductive coupling
    with hearing aid or cochlear implant telecoils. In addition, to use
    a wireless phone with a hearing aid or cochlear implant in telecoil
    coupling mode, without employing an accessory device (*e.g.,* a neck
    loop), the voice coil of the wireless phone's speaker or a
    separately installed coil must generate an audio signal-based
    magnetic field of sufficient intensity and frequency response for
    reception by the telecoil and conversion into sound by the hearing
    aid speaker or into digital signals by the cochlear implant
    processor. If the magnetic field's intensity is too low, a hearing
    aid user may attempt to compensate by increasing the sensitivity of
    the telecoil. But this could introduce interference from undesired
    electromagnetic fields not previously detected, such as from
    operation of the wireless phone's display and keyboard
    backlight.[^120]

42. The ANSI standard specifies the axial field and radial field
    intensity of the audio signal\'s magnetic field required for
    satisfactory operation of digital wireless phones with hearing aids
    in telecoil mode. The standard also specifies ratings for the
    magnetic field quality of digital wireless phones as well as the
    immunity of hearing aids to undesired magnetic fields, U1T through
    U4T.[^121] To determine whether a particular digital wireless phone
    will function with a particular hearing aid in telecoil mode, the
    immunity rating of the hearing aid is added to the magnetic field
    rating of the wireless phone. A sum of 4 would indicate that the
    wireless phone is usable; a sum of 5 would indicate that the
    wireless phone would provide normal use; and a sum of 6 or greater
    would indicate that the wireless phone would provide excellent
    performance with that hearing aid in telecoil mode.[^122]

43. ANSI C63.19 is a detailed standard that is highly predictive of the
    usability of compatible wireless phones with sufficiently immune
    hearing aids, a point which the Telecommunications Access Advisory
    Committee to the United States Architectural and Transportation
    Barriers Compliance Board makes in declaring ANSI C63.19 to be a
    success.[^123] Even though the Commission expressed the view in the
    *Notice* that ANSI C63.19 did not appear to constitute an
    established technical standard within the meaning of the HAC
    Act,[^124] through comments submitted on the record by ANSI ASC C63
    SC8 and other information gathered during the course of this
    proceeding, we now believe the standard does constitute a workable
    technical standard to produce digital wireless phones that can be
    used effectively with hearing aids.[^125] ANSI C63.19 was made
    publicly available shortly before the adoption of the Notice, and
    Commission staff had a limited time within which to evaluate its
    applicability and usefulness for purposes of determining whether it
    was a standard that would be technologically feasible for digital
    wireless phones to meet. We have since had a more thorough
    opportunity to evaluate the standard and to obtain additional
    information from persons involved with the standard's development
    and initial testing, and it appears to be a workable technical
    standard for purposes of lifting the exemption for digital wireless
    phones.[^126] We, therefore, find that the ANSI C63.19 standard for
    digital wireless phone compatibility with hearing aids is an
    established technical standard, as required by the HAC Act.

44. [Feasibility of Meeting the ANSI Standard.]{.underline} In addition
    to requiring an established standard, the technological feasibility
    criterion of the HAC Act requires that wireless phones be capable of
    meeting that standard. In the record, manufacturers, including
    Motorola and Nokia, confirm that certain of their digital wireless
    phones across four air interfaces currently meet the U3 or higher
    rating required under the ANSI C63.19 standard for good performance
    with compliant hearing aids.[^127] Because shielding can reduce the
    RF energy directed toward a user, such techniques have the potential
    to permit wireless phones to achieve the U3 or higher rating, and
    thus reduce the interference to hearing aids.[^128] Contrary to
    Sprint PCS's assertion that reducing EMI from wireless phones will
    significantly reduce industrial design options,[^129] there are a
    number of steps manufacturers might take to reduce EMI without
    significantly affecting handset designs. For example, printed
    circuit board shielding and shunt traces can effectively reduce
    EMI-causing emissions from printed circuit boards.[^130] Also, cell
    phone enclosure shielding has evolved from plated metal, to plated
    plastic, to today's robotically-painted and EMI-gasketed parts,
    which can significantly reduce EMI.[^131] As Sprint PCS states, some
    metals used for shielding, such as copper, readily oxidize upon
    exposure to the environment.[^132] However, techniques have been
    developed to prevent such metals from oxidizing.[^133] Sprint PCS
    also notes that a capacitor intended to filter audio signal EMI
    would also reduce the gain of the audio signal.[^134] We agree,
    because if the frequency of the undesired signal is at or near that
    of the desired signal, a filter designed to attenuate the undesired
    signal will also attenuate the desired signal.[^135] Techniques
    other than filtering could be used to eliminate audio signal
    EMI.[^136]

45. Although direct current (DC) wireless phone batteries do not
    typically produce EMI,[^137] alternating current (AC) elsewhere in
    the phone, such as for the RF amplifier, the keypad light, and the
    display screen light can generate EMI to hearing aids. Techniques to
    mitigate such interference include passive inductive
    cancellation,[^138] as well as the shielding techniques previously
    discussed. Also, several mobile phone manufacturers, including
    Kyocera, LG, Samsung, and Sanyo, are currently producing wireless
    phones with a programmable backlight setting that allow a user to
    select how long the display screen and keypad remain backlit after
    any key press is made.[^139] As more manufacturers follow suit, then
    this source of interference to hearing aids users will be eliminated
    because consumers will be able to turn off or otherwise control the
    backlight.

46. In addition, we note that some wireless carriers are considering the
    use of directional antennas to improve network performance,[^140]
    and that these antennas may also reduce the RF interference
    experienced by some hearing aid users. A few vendors are currently
    working to develop accessory directional antennas that connect to
    the hands-free antenna port on the back of some handset models, and
    which are designed to reduce the level of RF emissions directed
    toward the hearing aid.[^141] Some commenters claim that directional
    antennas could significantly impact wireless networks' performance
    by affecting initial call connection attempts and later handoffs,
    potentially requiring considerable changes to networks'
    configurations and operation.[^142] Contrary to these assertions,
    however, directional antennas have the potential to help mitigate
    the effects of multipath, improve frequency bandwidth performance,
    achieve higher gain, and provide better directional control over
    emissions.[^143] Although handsets that employ directional antennas
    may need to be slightly reoriented when used in certain locations,
    techniques such as antenna diversity are being considered to combat
    large-scale fading effects caused by shadowing from large obstacles
    (*e.g.*, buildings or other terrain features).[^144] Because such
    antennas have the potential to significantly reduce the RF
    interference to hearing aids, as well as provide efficiency benefits
    both to the wireless network and to battery life, there are several
    benefits that could be gained from their increased use in handsets.

47. We note that some commenters claim that the Commission's rules
    appear to prohibit the use of directional wireless phone
    antennas.[^145] Section 24.232(b) limits the power for broadband PCS
    mobile stations to 2 watts peak Effective Isotropic Radiated Power
    (EIRP), and the equipment must employ means to limit the power to a
    minimum necessary for successful communications.[^146] A directional
    antenna manufacturer, Myers Johnson, Inc. (MJI), has filed a
    petition for revision of this rule. MJI believes that the rule, as
    it is written, prohibits the use of directional antennas.[^147] We
    disagree. The EIRP requirement does not in any way prohibit
    employing wireless phone directional antennas. We do not interpret
    the rule to require antennas to radiate only in an isotropic
    pattern. Instead, section 24.232 only establishes the maximum power
    that can be transmitted from wireless phones. As a result, we deny
    Myers Johnson's petition to modify section 24.232.

48. In addition to employing techniques to reduce interference caused by
    digital wireless phones to hearing aids, we also believe it is
    technologically feasible for digital wireless phones to be made
    capable of inductive coupling with the hearing aid's telecoil
    (*i.e,* to meet a U3T rating). Nokia indicates that initial testing
    demonstrates that some of its phones meet the U2T to U4T magnetic
    field quality rating.[^148] Although some wireless industry parties
    contend that a new standard for inductive coupling needs to be
    developed,[^149] the ANSI C63.19 standard recommends specific
    magnetic intensity levels and signal plus noise-to-noise ratios
    (*i.e.*, quality levels) for successful inductive coupling with
    hearing aids.[^150] The magnetic field specified in ANSI C63.19 can
    be provided by internal means via the voice coil of a wireless
    phone's dynamic speaker.[^151] Alternatively, to increase durability
    and battery life and to decrease component weight, a wireless phone
    manufacturer may elect to incorporate an induction coil in addition
    to a non-inductive speaker assembly, such as a piezoelectric
    speaker, to provide the required magnetic field. ANSI C63.19
    recommends that the location of the additional coil should be near
    but not necessarily centered on the speaker opening.[^152] We note
    that some Samsung digital wireless phone models have designs which
    approximate the section 68.316 requirements for wireline hearing aid
    compatibility, and this appears to promote telecoil coupling
    capability.[^153] In addition, consumers have reported finding some
    digital wireless phones that provide adequate telecoil coupling
    capability.[^154] We also note that Audex Inc. has developed an
    external device which, when used with a digital wireless phone,
    generates a magnetic field that is sufficient to provide telecoil
    coupling capability.[^155] This device is currently employed as an
    external attachment to certain handsets, fitting between the phone's
    body and the battery.[^156] Alternatively, its functionality could
    be incorporated into a wireless handset itself.[^157]

49. Because we believe that the U3 and U3T performance levels for normal
    use specified in ANSI C63.19 constitute an established standard
    which digital wireless phones currently available on the market
    meet, we conclude that it is technologically feasible for certain
    digital wireless phones to be made hearing aid compatible. The
    record evidence indicating that digital wireless phones can meet the
    U3 and U3T performance levels in the ANSI C63.19 standard is
    sufficient evidence to establish the requirement that such phones be
    capable of meeting the established technical standard. We recognize
    that, as the industry engages in testing and design work geared to
    comply with the U3 and U3T performance levels, the standard may need
    to be revisited. In addition, alternative approaches to the problem
    of providing greater wireless accessibility for hearing aid users
    should be explored. We encourage these steps as part of an
    evolutionary process that will ultimately lead to increased wireless
    communications accessibility for individuals with hearing
    disabilities.

## Marketability

50. In order to modify the exemption contained in the HAC Act for
    wireless phones, the Commission must also find that compliance
    "would not increase costs to such an extent that the
    telephones...could not be successfully marketed."[^158] Based on the
    record in this proceeding, we further find that it is possible for
    digital wireless phones to comply with the hearing aid compatibility
    requirement and that such a requirement would not increase the costs
    of such phones to such an extent that they could not be successfully
    marketed.

51. There is evidence on the record that supports a finding that
    compliance with U3 and U3T performance levels of the ANSI C63.19
    standard is not only technologically feasible, but that such
    compliance can be achieved in competitively-priced digital wireless
    phones. As stated above, a number of manufacturers have asserted in
    this proceeding that they currently offer customers digital wireless
    phones that meet the U3 performance level of the ANSI C63.19
    standard.[^159] These entities manufacture digital wireless phones
    over all air interfaces and these digital wireless phones
    incorporate a variety of features. Also, manufacturers are producing
    digital wireless phones that approximate the magnetic field
    intensity for wireline telephones specified in section 68.316 of our
    rules.[^160] While the U3T performance level goes beyond the
    wireline standards contained in our rules, we do not believe that
    digital wireless phones that meet the U3T performance level would be
    too costly to market. As we discussed above, modifications to the
    handset could yield the necessary magnetic field for inductive
    coupling, and it does not appear that such modifications will cause
    significant research and development or production costs.[^161]

52. In addition, as the number of hearing aid and cochlear implant users
    continues to increase over the next several years,[^162] we expect
    that demand for hearing aid-compliant handsets also will increase.
    This increased demand should drive down the costs of production for
    hearing aid-compliant phones. Moreover, to the extent manufacturers
    incorporate hearing aid compatible functionality into greater
    numbers of digital wireless handsets, this should also drive down
    the cost per unit and increase the likelihood that these phones
    could be successfully marketed. Based on this evidence, we conclude
    that the "marketability" criterion for modifying the exemption is
    met.[^163]

# requirements for hearing aid compatibility of wireless phones

53. In this Section, we detail the requirements that we adopt in this
    Order and provide a timeframe for implementation of those
    requirements. We adopt certain performance levels set forth in ANSI
    C63.19 as a technical standard to govern digital wireless phone
    compatibility with hearing aids. Within two years, we require each
    digital wireless phone manufacturer to make available to carriers
    and require each carrier providing digital wireless services to make
    available to consumers at least two handset models for each air
    interface it offers[^164] which provide reduced RF emissions ("U3"
    rating) to enable acoustic coupling.[^165] Also within two years, we
    require each Tier I wireless carrier providing digital wireless
    services to make available to consumers at least two handset models
    for each air interface it offers to provide reduced RF emissions
    ("U3" rating) or 25 percent of the total number of phone models it
    offers, whichever is greater. Within three years, we require each
    digital wireless phone manufacturer to make available to carriers
    and require each carrier providing digital wireless services to make
    available to consumers at least two handset models for each air
    interface it offers which provide telecoil, or inductive, coupling
    ("U3T" rating). We adopt a *de minimis* exception to these
    requirements for certain digital wireless phone manufacturers and
    carriers.

54. To enhance consumer choice, we encourage digital wireless phone
    manufacturers and service providers to offer at least one compliant
    handset that is a lower-priced model and one that has higher-end
    features. By February 18, 2008, the date on which wireless carriers
    may discontinue providing analog service in accordance with the
    *Analog Sunset Order*,[^166] we require 50 percent of all digital
    wireless phone models offered by a manufacturer or carrier to be
    compliant with the reduced RF emissions requirements. Additionally,
    we require manufacturers to label the handsets accordingly, and we
    require carriers to make available the performance rating of the
    compliant handsets. We require wireless carriers and digital
    wireless handset manufacturers to report semiannually (every six
    months) on efforts toward compliance during the first three years,
    then annually thereafter through the fifth year of implementation.
    We commit the Commission staff to deliver a report to the Commission
    shortly after three years from the effective date of this Order so
    we can examine the impact of these requirements. This report will
    form the basis for the Commission to initiate a proceeding soon
    after the report is issued to evaluate whether to increase or
    decrease the 2008 requirement to provide 50 percent of phone models,
    whether to adopt implementation benchmarks beyond 2008, and whether
    to otherwise modify the implementation requirements. We encourage
    hearing aid manufacturers to label their pre-customization products
    according to the ANSI standard. And, finally, we encourage phone
    manufacturers and service providers to engage in outreach efforts
    intended to educate the public, audiologists, hearing aid
    dispensers, and retail personnel concerning using digital wireless
    phones with hearing aids. These actions are described in greater
    detail below.

## Adoption of ANSI C63.19 Performance Levels as the Applicable Technical Standard

55. As discussed above in Section IV.C, the ANSI C63.19 standard is the
    most relevant technical standard currently available for measuring
    whether a particular digital wireless phone is likely to work with a
    hearing aid with particular characteristics. This standard was
    developed by representatives of a number of interested parties,
    including wireless carriers, digital wireless phone manufacturers,
    and hearing aid manufacturers, as well as by representatives from
    the FCC and FDA. While we recognize that some parties have asserted
    that ANSI C63.19 is not a perfect tool for ensuring that any given
    hearing aid will work with a particular digital wireless
    phone,[^167] we believe the standard presents a workable approach to
    measuring levels of interference digital wireless handsets cause to
    hearing aids, as well as for measuring the immunity of hearing aids.
    In addition, ANSI C63.19 sets forth obtainable performance
    characteristics for wireless phones and provides a reasonable
    methodology for predicting the likelihood that two devices will work
    together.

56. As discussed above, a digital wireless handset which meets a U3
    rating for reduced RF interference and a U3T rating for telecoil
    coupling would likely result in normal performance with a U2-rated
    hearing aid and in excellent performance for a person using a
    U3-rated hearing aid.[^168] Hearing aid manufacturers indicate that
    the majority of hearing aids being produced today are capable of
    meeting an immunity level that would result in good performance with
    a digital wireless phone meeting the U3 or U3T requirements under
    the ANSI standard. As a result, we find that a requirement that
    handsets meet a U3 and U3T rating under ANSI C63.19 will facilitate
    successful combinations of hearing aids and digital wireless phones,
    and should be mandated. The record indicates that there are some
    digital wireless handsets presently on the market that meet the U3
    level, and while further testing is necessary, it appears that there
    are some handsets which produce a sufficient electromagnetic field
    to permit telecoil coupling with hearing aids.[^169] This may mean
    that these handsets either already do meet the U3T rating under ANSI
    C63.19, or that they could feasibly meet that rating with some minor
    modifications.

57. Some wireless phone manufacturers have questioned whether handset
    compliance with ANSI C63.19 will ensure a successful consumer
    experience in all cases, particularly since we are not imposing
    immunity requirements on hearing aid manufacturers.[^170] HIA has
    expressed concern regarding the labeling of hearing aids,
    particularly since they are highly customized for each person's
    physiology and individual hearing loss and it is difficult to
    predict whether a particular hearing aid will provide the same level
    of immunity for every user.[^171] Nonetheless, by requiring digital
    wireless phones to provide a reduced level of RF emissions and to
    provide telecoil coupling capability as described in this Order, we
    believe that a greater number of hearing aid and cochlear implant
    users will be able to find digital wireless phones that will work
    for them. Also, it appears that, by meeting the ANSI C63.19
    performance standards, compliant digital wireless phones will have
    improved audio quality. As a result, we do not need to impose rules
    concerning volume control of wireless phones like those governing
    wireline phones.

58. Hearing aid manufacturers have increased the immunity of hearing
    aids in recent years, and they state that, if a digital wireless
    handset meets the U3 or U3T or better rating under ANSI C63.19, "HIA
    member companies can identify hearing aids that have been designed
    to meet higher immunity levels as compatible with digital handsets
    that meet \[the U3 and U3T requirements.\] Further, HIA members, as
    a policy, will continue to provide at least a 30-day trial period on
    hearing aids respective companies consider to be compatible and
    offer a full refund should the hearing aid not meet the customer's
    expectations."[^172] HIA has committed that, in the event we adopt
    such performance requirements for digital wireless phones, its
    members would allow the user a 30-day trial period, and the
    manufacturer would take the hearing aid back for a full refund "if
    it cannot be adjusted, re-manufactured, or replaced to satisfy the
    needs of the user."[^173]

59. We are comfortable relying on these commitments because HIA
    represents a significant portion of the market for these
    devices.[^174] Market forces should provide a sufficient incentive
    for hearing aid manufacturers to honor their commitments. We expect,
    in light of the commitment that HIA has made in the record of our
    proceeding, that this commitment will be honored by HIA\'s members,
    and we will view a failure to do so as a matter that may be
    appropriate for further examination by the Commission. Through the
    complaint procedures discussed below, we will be able to determine
    whether and to what extent compatibility problems are a result of
    wireless phones or hearing aids, and we will monitor the status of
    accessibility and consider taking further action, if
    appropriate.[^175] While not a guarantee that every hearing aid user
    will be able to use digital wireless handsets meeting the ANSI
    standard, the measures being taken by hearing aid manufacturers,
    combined with wireless handset manufacturers' compliance with the
    requirements of this Order, should significantly expand the
    accessibility of digital wireless phones and services to individuals
    with hearing disabilities.

60. We note that the HAC Act contemplates that phones subject to the
    requirements need only be capable of effective use with hearing aids
    designed for use with digital wireless phones. The statute requires
    telephones to "provide internal means for effective use with
    *hearing aids that are designed to be compatible with telephones
    which meet established technical standards* for hearing aid
    compatibility."[^176] We interpret this to mean that the statute
    does not require covered telephones to be compatible with all
    hearing aids, but rather only hearing aids with sufficient immunity
    to be intended for use with wireless devices and services. We
    believe this would refer to hearing aids meeting a U2 level of
    immunity under ANSI C63.19, since many newer hearing aids can meet
    this standard and because, when combined with a U3 or U3T digital
    wireless phone, the combination should allow for normal use
    according to ANSI C63.19. As a result, we do not expect digital
    wireless phones meeting the requirements of this Order to be
    compatible with hearing aids that lack sufficient immunity (*i.e.*
    those meeting less than a U2 level). It is possible that the hearing
    aid user may need to purchase a new hearing aid before being able to
    take advantage of digital wireless phones and services.

61. The HAC Act refers to providing for *internal means* for effective
    use with hearing aids. We interpret this to mean that the capability
    must be provided as an integral part of the phone, rather than
    through the use of add-on components that significantly enlarge or
    alter the shape or weight of the phone as compared to other phones
    offered by the manufacturer. Until hearing aid compatibility is
    provided internally in digital wireless handsets in accordance with
    this Order, consumers can reduce or even eliminate the interference
    to their hearing aids by increasing the distance between the hearing
    aid and the wireless phone through the use of accessory devices such
    as neck loops or hands-free headsets.[^177] However, we are aware
    that many consumers indicate that they are unduly restricted by
    accessory devices because they are cumbersome, inconvenient, and
    expensive.[^178]

62. Some wireless industry parties have noted that, in the future, other
    techniques for coupling hearing aids with digital wireless phones
    may be developed as alternatives to telecoil coupling.[^179] We do
    not intend to impede these developments or preclude alternatives to
    telecoil coupling. To the extent technological advances occur that
    result in substantially equivalent or greater access to and
    usability by individuals with hearing disabilities, we encourage the
    industry to pursue them.[^180] Once these new coupling methods are
    available, we encourage parties to keep us abreast of the
    developments by submitting information on the record and we may
    revisit the issue, if appropriate. In the meantime, we expect that
    industry will continue to provide products that meet the ANSI C63.19
    standard in order for individuals with hearing disabilities to
    continue to have access to wireless telecommunications.

63. Accordingly, we are adopting certain performance standards contained
    in the 2001 version of ANSI C63.19 as the applicable technical
    standard for wireless hearing aid compatibility. We encourage ANSI
    to work with the relevant stakeholders to review the standard
    periodically to determine whether improvements to the standard are
    warranted. ANSI should submit any revisions to the standard to the
    FCC for consideration of whether to incorporate the modified
    standard into FCC rules. To help ensure that our rules continue to
    reflect the current standard,[^181] we delegate to the Chief,
    Wireless Telecommunications Bureau, in coordination with Chief,
    Office of Engineering and Technology, the authority to approve
    future versions of ANSI C63.19 to the extent that the changes to the
    standard do not raise major compliance issues. At the same time, we
    recognize the necessity to provide opportunity for notice and
    comment on any changes or modifications that could affect compliance
    with our regulations. In cases, therefore, where major changes have
    been made that could affect compliance, the Commission will initiate
    an appropriate rulemaking proceeding to consider adoption of updated
    versions.[^182]

64. We note that CTIA and Motorola have requested that the Commission
    refrain from requiring manufacturers to test wireless handsets in
    analog mode to establish their performance rating according to ANSI
    C63.19.[^183] They assert that testing under the analog component of
    the test distorts the results for dual mode phones. We understand
    that there are very few, if any, handsets presently on the market
    which operate exclusively in the analog mode, and wireless analog
    phones do not present the same RF interference problems to hearing
    aids as do digital wireless phones. Because this proceeding is
    primarily focused on solving the problems of digital wireless phone
    use by hearing aid users, testing of phones in analog mode seems to
    be unnecessary.[^184] Therefore, in order to avoid distorting the
    test results for wireless phones tested in digital mode, we find
    that the phones need not be tested under the analog test measurement
    prescribed by ANSI C63.19.

## Implementation Requirements

65. In order to promote competition among digital wireless handset
    manufacturers and to ensure that consumers have a range of options
    for wireless telecommunications, we adopt the following
    implementation requirements. We require, within two years, that each
    digital wireless handset manufacturer and each carrier providing
    digital wireless services to make commercially available at least
    two handsets for each air interface in its product line (*i.e*.,
    CDMA, TDMA, GSM, and iDEN) which meet the U3 performance level
    (acoustic coupling) under ANSI C63.19. This means that carriers must
    offer consumers at least two compliant phone models for each air
    interface they offer, but not necessarily two for every manufacturer
    they carry. However, within two years, we require each Tier I
    wireless carrier offering digital wireless services to make
    available to consumers at least two phone models that meet the U3
    requirements, or 25 percent of the total number of wireless phone
    models it offers, whichever is greater.[^185] By the end of three
    years, manufacturers and carriers must offer at least two digital
    wireless handsets meeting the U3T performance level for providing
    telecoil coupling capability (inductive coupling) for each air
    interface offered. Carriers must make available all of their phone
    models that comply with the requirements of this paragraph for
    consumers to test in each retail store that carriers own or operate.
    In addition, carriers should use their best efforts to provide
    compliant phones to consumers within 48 hours of ordering.

66. In addition, by February 18, 2008, the date on which wireless
    carriers may discontinue providing analog service in accordance with
    the *Analog Sunset Order*,[^186] we require 50 percent of all phone
    models offered by digital wireless phone manufacturers and service
    providers to meet the U3 performance level for acoustic coupling as
    a reasonable step toward manufacturers' incorporation of hearing aid
    compatible functions into their phones. For purposes of calculating
    this 50 percent compliance percentage, as well as the 25 percent
    compliance percentage set forth above, we require wireless carriers
    and handset manufacturers to base their calculations on the total
    number of unique digital wireless phone models they offer throughout
    the nation. These requirements constitute steps toward our goal of
    having wireless phone manufacturers and service providers implement
    acoustic coupling capability ("U3") in all digital wireless phones
    at some point in the future.

67. In order to facilitate the ability of hearing aid users to obtain
    phones that comply with these implementation requirements, we
    require any reseller of a digital wireless carrier's product
    offerings to carry, at a minimum, the same number of compliant
    phones that the carrier offers at its retail stores. In addition, we
    encourage distributors of digital wireless phones to offer compliant
    phones in their retail outlets.

68. We note that Cingular and Siemens have asked that phone
    manufacturers be permitted to use a "seed stock approach" to provide
    compliant handsets, under which handsets would be provided by
    manufacturers to consumers, in a timely fashion, upon request.[^187]
    Digital wireless phone manufacturers and carriers that choose to
    offer compliant handsets through a central distribution point,
    rather than through individual retail outlets, must do so in a
    timely fashion. Specifically, as we have noted above,[^188] we
    expect that carriers will make their best efforts to provide
    compliant phones to consumers that order them within 48 hours of the
    order to an address designated by the consumer. We note that we do
    not view the seed stock approach as altering the obligation of
    carriers to make sure that they offer the requisite number of
    compliant handsets that will work on their network, nor would it
    alter the carriers' obligation to provide their compliant handsets
    in their retail stores for consumers to test. To the contrary, the
    seed stock approach merely provides the flexibility to offer
    compliant wireless phones through a central distribution point.

69. We recognize that this implementation approach could have a
    disproportionate impact on small phone manufacturers or those that
    sell only a small number of digital wireless handsets in the United
    States, as well as on carriers that offer only a small number of
    digital wireless handsets. In order to address this, we adopt a *de
    minimis* exception for manufacturers and carriers that offer a small
    number of handset models in the U.S. Specifically, if a manufacturer
    or carrier offers two or fewer digital wireless handset models in
    the U.S., it is exempt from the compatibility requirements in this
    Order. If a manufacturer or carrier offers three digital wireless
    handset models, it must make at least one compliant phone model in
    two years. Furthermore, to the extent there are digital wireless
    providers that obtain handsets only from manufacturers that offer
    two or fewer digital wireless phone models in the U.S., the service
    provider would likewise be exempt from the rules. Similarly, if a
    service provider obtains handsets only from manufacturers that offer
    three digital wireless phone models in the U.S., that service
    provider would only have to offer one compliant handset model. We
    note that, by providing this *de minimis* exception, this does not
    mean that consumers living in areas with a limited choice of
    carriers, such as in rural areas, will be unable to obtain compliant
    phones. As CTIA has asserted, it appears that there are other
    avenues available for consumers to order compliant phones if they
    are unable to obtain one from one of their local carriers.[^189] For
    example, consumers may be able to order a phone from the roaming
    partner of a local wireless carrier or directly from a wireless
    handset manufacturer's web site.[^190]

70. In addition, in meeting the two- and three-year requirements, we
    encourage digital wireless phone manufacturers and service providers
    to provide at least one compliant phone that is a lower-priced model
    and one model that has higher-end features. For purposes of meeting
    the 50 percent level, manufacturers and carriers should continue to
    offer one lower-priced model and one model with higher-end features,
    and the features and prices of any additional compliant phones are
    at the discretion of the manufacturer or carrier. These steps should
    help to ensure that consumers have a variety of technology and
    feature choices. We also expect that these digital wireless phones
    will be offered in conjunction with attractive service plans and be
    as equivalent to other non-HAC phones as possible. These measures
    will ensure that individuals with hearing disabilities will enjoy
    many of the same choices in wireless telecommunications options that
    are available to individuals without hearing disabilities.

71. We recognize that, as manufacturers engage in testing under ANSI
    C63.19, some handset design changes may be necessary in some cases.
    With respect to meeting our telecoil coupling requirements (*i.e.*,
    the \"U3T\" rating), we have allowed for three years until the first
    implementation benchmark that must be met by manufacturers and
    service providers. Because handset design cycles can take one year
    or more,[^191] we conclude that three years should be sufficient
    time for manufacturers to make design changes, if necessary, and
    begin delivering phones that comply with the telecoil coupling
    requirements. In addition, we believe that two years is an
    appropriate period of time to allow for manufacturers to produce and
    label digital wireless phones which comply with the U3 level for
    reduced RF emissions, and for service providers to begin offering
    them to consumers. [^192] For purposes of meeting the two-year time
    frame for offering phones meeting the reduced electromagnetic
    emissions part of the ANSI standard (the \"U3\" rating), we
    anticipate that most phones will not require changes to the core
    design. In fact, there are some handset manufacturers that indicate
    that they have some digital wireless handsets currently on the
    market that meet the U3 level.[^193] As a result, we require
    carriers and manufacturers to make commercially available two
    handsets per air interface offered which comply with the U3 criteria
    of ANSI C63.19 within two years, and we require carriers and
    manufacturers to make commercially available two handsets per air
    interface offered which comply with the U3T criteria of the standard
    within three years.[^194] These time periods should also provide
    sufficient time to label product packages and to incorporate
    information on the standard into user manuals.

72. In an effort to ensure consumers continued accessibility and a range
    of product options, we require 50 percent of all phone models
    offered by digital wireless phone manufacturers and service
    providers to be compliant with the requirements for acoustic
    coupling (*i.e.*, U3) by February 18, 2008, the date on which
    wireless carriers may discontinue providing analog service in
    accordance with the *Analog Sunset Order*.[^195] This is part of a
    process by which manufacturers should begin to incorporate
    accessibility for individuals with hearing disabilities into all of
    their handsets. As the Commission and Congress have recognized,
    access to telecommunications is essential for participation in
    nearly all aspects of society.[^196] As a policy matter, it is
    important to ensure that individuals with disabilities are not left
    behind as digital technology evolves and improves wireless
    telecommunications. Nor should individuals with hearing disabilities
    be limited to a small number of product offerings. In this
    proceeding, although we are initially subjecting only a limited
    number of digital wireless handsets to our rules, we expect handset
    manufacturers and wireless service providers to continue efforts to
    incorporate accessible features into all of their products and
    services.

73. We consider providing compatibility in one half of phone models by
    February 18, 2008, as a feasible and desirable interim goal. We
    believe that, as handsets are tested and more attention and
    resources are focused on the issue of compatibility of wireless
    devices with hearing aids, the wireless industry will find ways to
    achieve this important goal and that it may become easier over time.
    As a result, this time period should provide sufficient time to
    apply the solutions to additional handset models. This will further
    expand the wireless telecommunications options for individuals with
    hearing disabilities. As manufacturers gain experience from working
    with the standard, the ability to incorporate higher levels of
    interference control will become more practicable.

74. Shortly after three years after the effective date of this Order,
    FCC staff will deliver to the Commission a report that assesses the
    impact of our rules in achieving greater compatibility between
    hearing aids and digital wireless phones. In addition, the staff
    report will examine the development of new technologies that could
    provide greater or more efficient accessibility of wireless
    telecommunications to hearing aid users. The staff report also will
    examine the impact of this Order's compatibility requirements on
    cochlear implant and middle ear implant users and their ability to
    use digital wireless phones. This report will form the basis for the
    Commission to initiate a proceeding to evaluate: (1) whether to
    increase of decrease the 2008 requirement to provide 50 percent of
    phone models that comply with a U3 rating; (2) whether to adopt HAC
    implementation benchmarks beyond 2008; and (3) whether to otherwise
    modify the HAC requirements. We commit to initiate this proceeding
    soon after the report is issued. If the staff report and the record
    of the proceeding demonstrate that the 50 percent requirement has
    proven effective and practicable, we expect to establish a higher
    percentage requirement to be implemented after 2008, consistent with
    our overall goal to ensure access to digital wireless services by
    individuals who use hearing aids.

75. We require that tests be conducted to determine whether handsets,
    selected by the manufacturers as potential candidates for hearing
    aid compatibility, meet the U3 or U3T performance levels under the
    ANSI C63.19 standard. Manufacturers should then certify compliance
    with the compatibility requirements in this Order through the
    equipment authorization process set forth in Part 2 of our
    rules.[^197] In order to verify compliance, manufacturers and
    service providers should include in their implementation reports a
    demonstration that they are offering a sufficient number of
    compatible handsets under our rules. This may necessitate a
    statement of how many handset models are being offered in the U.S.
    market overall as well as the number of compatible handset models,
    in order for us to verify that the 50 percent level has been
    achieved.[^198] For purposes of determining whether that level has
    been reached, the determination of the number of handsets on the
    market will be made as of the time of the report. In addition, in
    order to verify whether a manufacturer or carrier qualifies for the
    *de minimis* exception, entities should submit reports indicating
    the number of handsets they offer in the U.S.

76. We acknowledge that these requirements may be more difficult to
    implement for some air interfaces than for others. For example,
    parties have noted the difficulties presented by GSM technology with
    respect to reducing RF emissions to levels required under ANSI
    C63.19. However, there is evidence that some manufacturers produce
    digital wireless phones for the GSM interface that are close to, or
    capable of, complying with the U3 and U3T performance levels of the
    ANSI C63.19 standard.[^199] In addition, the Commission is committed
    to the principle of technological neutrality in its regulatory
    requirements. For this reason, we impose the requirements across all
    transmission technologies.

77. We also note that there are some digital wireless devices that are
    not designed to be held to the user's ear, but which provide voice
    functionality in addition to serving as a personal digital assistant
    (PDA) or similar functionality. Typically, these devices employ a
    headphone or earphone device to utilize the two-way voice
    functionality. We understand that, because the electronics of these
    devices are held at a distance from the ear, they would be unlikely
    to cause RF interference or other EMI to hearing aids. Additionally,
    a telecoil contained in the device itself would not be practicable
    because of the large magnetic field that would need to be created
    given the distance that these devices will be used from the hearing
    aid. We expect telecoil capabilities will be developed through
    headsets or other means. Because of the nature of these devices, we
    do not require digital wireless devices that do not have any
    built-in speaker or ear piece to be compliant with the ANSI C63.19
    requirements set forth in this Order at this time. We will continue
    to monitor the use of these devices and may revisit this decision in
    the future.

78. The record before us does not support extending the requirements to
    all digital wireless phones in the near term. Manufacturers have
    asserted that compliance for all digital wireless is not
    technologically feasible at this time and, such a requirement could
    produce undesired economic consequences, including restricted choice
    of handsets and a stifling of emerging technological advances.[^200]
    For example, certain manufacturers have already begun testing their
    handsets to the ANSI standard.[^201] Those manufacturers have shown
    that some of their handsets are currently capable of meeting the
    standard.[^202] They have also asserted, however, that certain
    features associated with more feature-rich phones present an ongoing
    problem that they will need time to address. In particular, Nokia
    and Ericsson have indicated that newer model phones that may be
    smaller and which include larger displays and features such as
    games, music, and enhanced keypads, would present battery drain,
    interference, and form factor issues if required to also incorporate
    hearing aid compatibility features.[^203] In a related provision of
    the HAC Act, the Commission is instructed to "specifically consider
    the costs and benefits to all telephone users, including persons
    with and without hearing impairments" in formulating rules and to
    "ensure that regulations adopted to implement this section encourage
    the use of currently available technology and do not discourage or
    impair the development of improved technology.[^204] We have,
    therefore, tailored our rules in a manner that recognizes that the
    costs of requiring compliance by all phones, at this time, would
    outweigh the potential benefits.[^205]

79. Additionally, we have tailored our rules to ensure they do not
    impair the introduction of new technologies. By limiting compliance,
    in the short term, to two handsets within two years, we are able to
    allow manufacturers the ability to experiment with and design new
    technologies and features. As noted in the proceeding, the more
    feature-rich wireless phones may have a greater difficulty in
    complying because the interference created to display and run some
    of those programs add to the EMI already being generated by the
    phone.[^206] We believe, therefore, that requiring compliance in all
    phones, in the near term, may hinder the introduction of such
    wireless phones.

80. Moreover, the Commission is concerned that requiring 100 percent
    compliance at this time could have the unintended effect of stifling
    innovation. The HAC Act specifically directs the Commission to
    structure its rules in a manner that "\[does\] not discourage or
    impair the development of improved technology."[^207] The diversity
    of wireless phones and features not only represent a robust market
    of ideas becoming reality, they represent a market that is
    characterized by rapid change in capabilities of the devices. For
    instance, picture phones and movie phones are becoming available at
    prices that may make them attractive to consumers. Interference
    levels of these devices are not known by the Commission at this
    time. However, as a policy matter and consistent with the spirit of
    the HAC Act, we do not want to deter the manufacturers of these
    products from bringing them to market. Based on the record before us
    and the requirements of the HAC Act, we conclude that full
    compliance is not feasible at this time.

81. However, we are convinced that as manufacturers work with
    incorporating design changes into their handsets they will gain
    valuable knowledge on how to control RF interference and other EMI,
    as well as how to ensure their handsets are capable of producing a
    sufficient magnetic field to allow for telecoil coupling. The
    Commission, therefore, asks manufacturers to include in their
    implementation reports information that will help the Commission to
    make an informed decision on the soundness of requiring a greater
    number of handsets be capable of meeting the ANSI C63.19
    standard.[^208] Such information should focus on the extent to which
    the manufacturers' product line is capable of meeting the ANSI
    C63.19 standard. This information will be considered in the
    Commission staff report at the end of three years and in the
    subsequent proceeding to evaluate whether to modify the
    implementation requirements set forth in this Order.

## Labeling, Reporting, and Outreach

82. In this section, we discuss the labeling and reporting requirements
    we adopt pursuant to the requirements of the HAC Act.[^209] We also
    address outreach efforts and we encourage digital wireless phone
    manufacturers and service providers to engage in public outreach
    designed to educate the public, retail personnel, and people in the
    audiology and hearing aid dispensing field about the use of digital
    wireless phones with hearing aids and cochlear implants.

83. [Labeling]{.underline}. As detailed below, the Commission will
    require manufacturers to place a label on the exterior packaging
    containing the wireless telephone indicating the U-rating of the
    wireless telephone. The Commission will also require manufacturers
    to include more detailed information on the ANSI standard in a
    product insert or the wireless telephone's manual. Further, we
    require service providers to ensure that the label is made visible
    to individuals with hearing disabilities so they may determine which
    wireless telephone best meets their individual needs. In adopting
    these requirements, the Commission has balanced the needs of
    individuals with hearing disabilities to have access to sufficient
    information to make an informed decision, with the needs of
    manufacturers to be able to promote their products with as few
    encumbrances as possible. We find that the labeling requirement we
    adopt through this Order will provide sufficient information to the
    consumers, while not restricting the ability of manufacturers and
    service providers to promote and display their products.

84. The HAC Act instructs that the Commission "shall establish
    requirements for the labeling of packaging materials... to provide
    adequate information to consumers on the compatibility between
    telephones and hearing aids."[^210] This directive from Congress
    expresses its clear intent that we not only establish regulations to
    ensure access to telephones covered by the HAC Act, but that we make
    certain that consumers have the information necessary to make an
    informed decision. We, therefore, adopt requirements that will
    accomplish that task.

85. First, we require manufacturers to affix a label on the exterior of
    the wireless telephone's box that provides the particular U-rating
    for that model of handset. The label should be conspicuous so that
    the consumer, without any assistance, can discern the U-rating of
    the particular hearing aid-compatible phone. Unlike our rules
    governing wireline hearing aid compatibility rules, we do not
    require the phone itself to be labeled. We require labels to be
    affixed to the exterior of the packaging in order to inform the
    purchaser of the quality of interoperability between a wireless
    telephone and a hearing aid.[^211]

86. Additionally, we require manufacturers to develop language for a
    product insert or placement in the handset's manual. Such
    information will allow the consumer to better understand the
    U-rating system and could help frame the consumer's expectation with
    regards to the performance of the handset. Moreover, an explanation
    of the U-rating would provide consumers with information needed to
    aid audiologists in providing a hearing aid that works well with a
    wireless telephone. We are not adopting specific language for
    inclusion in the insert; instead, we allow each manufacturer to
    develop language that achieves the goal of providing consumers with
    more detailed information on the ANSI standard. For example, the
    insert should explain that a higher U-rating and UT-rating indicate
    that the wireless phone has a lower RF emissions level and higher
    magnetic signal quality, respectively, which will enable successful
    operation of the wireless phone with more hearing aids.

87. Furthermore, to ensure that the information is conveyed to
    consumers, we require service providers to ensure that the U-rating
    is made available, either through display on the handset's box,
    separate literature on which model handsets the provider offers that
    are compatible, through posting information on their Internet web
    site, or by any other means the service provider determines is
    sufficient, to individuals with hearing disabilities so they may
    determine which wireless telephone best meets their individual
    needs. We recognize that service providers offer their products and
    services through a variety of channels, including the Internet,
    carts in shopping malls, agents, and stand-alone stores. Some of
    these entities are small businesses with limited resources. We,
    therefore, are adopting a requirement that provides flexibility for
    service providers to determine how best to convey the information to
    the consumer. We encourage service providers to use the flexible
    approach we provide to adequately inform consumers with disabilities
    about their choices. Should the Commission receive a large volume of
    complaints concerning the inability of consumers to find the
    information our rules are asking be conveyed, we will revisit this
    decision. We also encourage service providers to train their
    personnel and agents so that they will be able to assist consumers
    that may have questions concerning handsets models that are hearing
    aid compatible.

88. In order to facilitate the matching of digital wireless handsets
    with hearing aids, we encourage hearing aid manufacturers to test
    and label their hearing aid models with their immunity level in
    accordance with ANSI C63.19. Such labeling should be on models of
    hearing aids before they are customized, either by the manufacturer
    or audiologist, for the user's individual hearing loss and
    physiology. Because ANSI C63.19 contemplates matching hearing aids
    together with digital wireless phones in order to produce a
    satisfactory result, individuals with hearing disabilities,
    audiologists, and hearing aid dispensers would benefit from knowing
    the immunity level of hearing aids to aid in the selection process.
    We fully expect that hearing aid manufacturers will label hearing
    aid models with their specific ratings in accordance with ANSI
    C63.19 (*i.e.*, U2) for several reasons. First, providing this
    information to consumers with hearing disabilities is in their
    interest from a marketing point of view. As we have noted, the
    number of Americans with hearing disabilities is growing, and so is
    wireless phone use. Thus, informing customers about the immunity
    level of their hearing aids would serve the hearing aid
    manufacturers' market interest by facilitating hearing aid use with
    digital wireless phones. Second, the FDA has indicated that claims
    by hearing aid manufacturers concerning their ANSI immunity level,
    if supported by data from bench or laboratory tests, would not
    present enforcement concerns.[^212] And, third, HIA has already
    taken a first step by agreeing on the record to include written
    material supplied with hearing aids that addresses the anticipated
    performance of a particular class of hearing aid models.[^213] We
    encourage HIA to submit a report within six months after the release
    of this Order informing us of the plans of hearing aid manufacturers
    to label hearing aid models with their immunity levels according to
    the ANSI standard. If inadequate progress is made in this area, we
    will examine the scope of our jurisdiction over hearing aid
    manufacturers in order to facilitate the goal of achieving hearing
    aid compatibility for consumers.

89. [Reporting]{.underline}. We require wireless carriers and handset
    manufacturers to report every six months on efforts toward
    compliance with the requirements of this Order during the first
    three years, and then annually thereafter through the fifth year of
    implementation. These reports will serve dual purposes: they will
    assist us in monitoring the progress of implementation, and they
    will provide valuable information to the public concerning
    compatible handsets. The reporting requirement will extend through
    the end of the fifth year following the effective date of this Order
    to assist in verifying compliance with the requirement to make 50
    percent of all phone models offered compatible. Digital wireless
    phone manufacturers and service providers may submit joint reports,
    if they wish, in order to minimize the reporting burden. The reports
    should describe manufacturer and carrier efforts aimed at complying
    with the requirements of this Order. Specifically, the reports
    should provide the Commission with the following information:

\(1\) digital wireless phones tested;

\(2\) laboratory used;

\(3\) test results for each phone tested;

\(4\) identification of compliant phone models and ratings according to
ANSI C63.19;

\(5\) report on the status of product labeling;

\(6\) report on outreach efforts;

\(7\) information related to retail availability of compliant phones;

\(8\) information related to incorporating hearing aid compatibility
features into newer models of

> digital wireless phones;

\(9\) any activities related to ANSI C63.19 or other standards work
intended to promote

> compliance with this Order;
>
> \(10\) total numbers of compliant and non-compliant phone models
> offered as of the time of the report; and

\(11\) any ongoing efforts for interoperability testing with hearing aid
devices.

90. Digital wireless service providers should highlight in their reports
    any differences in handset offerings among regions of their service
    areas. Reports may be filed electronically via our Electronic
    Comment Filing System (ECFS), which is accessible at
    [www.fcc.gov]{.underline}.

91. In the fourth year following the effective date of these
    requirements, manufacturers and carriers should include in their
    reports information that will help the Commission to make an
    informed decision on whether to extend the requirements beyond 50
    percent of digital wireless phone models offered. Specifically,
    reporting entities should discuss the feasibility of making 100
    percent of handsets capable of meeting the ANSI C63.19 standard.
    These reports should provide as much specific information as
    possible concerning the cost of implementing hearing aid
    compatibility into the remaining digital wireless phones
    manufactured, as well as a comprehensive list of all such phones
    offered at that time.

92. [Outreach]{.underline}. We strongly encourage digital wireless
    handset manufacturers and service providers to engage in outreach
    efforts. These efforts would, ideally, include publicly identifying
    the compliant phones for consumers and audiologists. Public outreach
    could also list compliant phones on carrier and manufacturer
    Internet sites, as well as communicating this information to
    consumer groups. For example, wireless handset manufacturers have
    agreed to provide information on wireless phones that provide
    hearing aid compatibility characteristics through a website
    established by CTIA.[^214] In order to assist consumers as they shop
    for wireless phones, we strongly encourage carriers to train retail
    salespeople regarding which digital wireless phones are
    compliant.[^215] This could be enhanced by providing written
    materials at the point of sale, such as pamphlets or other
    promotional literature, specifically addressing the needs of
    individuals with hearing disabilities. Manufacturers and carriers
    might also consider developing consumer education programs aimed at
    reaching hearing aid and cochlear implant users. Outreach efforts
    should also be directed toward audiologists and hearing aid
    dispensers, since these entities are in a good position to inform
    hearing aid users concerning the immunity of their hearing aids and,
    therefore, determine the likelihood that they will be able to use
    digital wireless phones and services.

93. In addition, in order to respond to the desire expressed by
    consumers for a trial period within which to try out digital
    wireless phones to determine whether they will work properly with
    their hearing aids, we encourage digital wireless service providers
    to provide a 30 day trial period or otherwise be flexible on their
    return policies for consumers seeking to obtain compliant phones.
    Consumers may need to experiment with various features and phone
    models to find the best match for their individual situation.
    Evidence in the record of this proceeding indicates that certain
    handset form factors, such as the "clamshell" design, tend to work
    better for hearing aid users. Also, any design which distances the
    wireless phone's antenna from the hearing aid tends to minimize RF
    emissions to the phone. In addition, as discussed in paragraph 45,
    wireless phones with a programmable backlight setting allow the user
    to control the backlight of the display screen and keypad, which can
    also minimize interference to hearing aids.

94. The Commission, through the Consumer & Governmental Affairs Bureau,
    will endeavor through its educational and outreach efforts, to
    ensure that those most likely affected are informed about the
    actions taken in this Order. In addition to making facts sheets and
    other informational materials available for dissemination through
    the Commission\'s web site and national consumer call centers, the
    Commission will release a Consumer Alert outlining, among other
    things, the requirements the Commission is placing on carriers
    providing digital wireless services and digital wireless phone
    manufacturers to make available compliant handsets. In conjunction
    with these efforts, the Commission will launch a comprehensive
    outreach campaign specifically targeted to reach individuals who use
    hearing aids. The Commission will directly contact those groups and
    associations representative of such individuals providing them with
    information about the new requirements for dissemination to their
    members. In addition, information will be provided to schools
    specifically addressing the educational needs of individuals with
    hearing disabilities. In concert with these efforts, the Commission,
    through a coordinated effort with the Food and Drug Administration,
    will provide relevant information to groups and associations
    representing audiologists, as well as the medical community in
    general through various channels, to ensure that information is
    readily available to educate consumers about the accessibility of
    digital wireless phones to individuals who use hearing aids.
    Finally, the Commission will provide media outlets likely to reach
    individuals who use hearing aids, as well as those of general
    distribution, with information outlining the requirements
    established in this Order.

## Enforcement

95. Finally, we expand the scope of our rules for enforcing wireline
    hearing aid compatibility to permit subscribers to digital wireless
    service to bring informal complaints should either manufacturers or
    service providers fail to comply with the rules we adopt in this
    Order. Since the initial adoption of hearing aid compatibility rules
    for wireline phones, the Commission has recognized the essential
    role consumers must play in detecting non-compliance with our rules.
    In this Order, the Commission extends its Part 68, Subpart E rules
    to allow consumers to file informal complaints if they find that
    service providers or manufacturers are not complying with our
    rules.[^216] The rules contained in Part 68 Subpart E explain the
    procedures consumers must follow to initiate a complaint.[^217] For
    example, under the Part 68 rules, informal complaints regarding
    compliance with the hearing aid compatibility rules for wireline
    phones must first be filed with the state public utility commission,
    so long as the state has adopted our hearing aid compatibility rules
    and provided for enforcement of those sections.[^218] We extend that
    procedure to wireless phones. Additionally, Part 68 explains the
    obligations of parties named in those complaints. The deadlines
    contained in those rules ensure that consumers' complaints will be
    addressed in an expeditious manner.

# Procedural Matters

## Regulatory Flexibility Act

96. The Final Regulatory Flexibility Analysis for this Report and Order,
    as required by the Regulatory Flexibility Act of 1980, see 5 U.S.C.
    § 604, is set forth in Appendix C.

## Paperwork Reduction Act

97. The actions contained herein have been analyzed with respect to the
    Paperwork Reduction Act of 1995 (PRA) and found to impose new
    reporting and/or recordkeeping requirements or burdens on the
    public. Implementation of these reporting and/or recordkeeping
    requirements will be subject to approval by the Office of Management
    and Budget (OMB) as prescribed by the PRA, and will go into effect
    upon publication by Commission staff of an announcement in the
    [Federal Register]{.underline} that OMB has approved the information
    collection.

**Paperwork Reduction Analysis**

98. This Report and Order contains a new information collection. As part
    of our continuing effort to reduce paperwork burdens, we invite the
    general public and the Office of Management and Budget ("OMB") to
    take this opportunity to comment on the infor­mation collection
    contained in this Report and Order, as required by the Paperwork
    Reduction Act of 1995.[^219] Public and agency comments are due 60
    days from the date of publication of this Report and Order in the
    [Federal Register]{.underline}. Comments should address:

-   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.

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-   The accuracy of the Commission\'s burden estimates.

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-   Ways to enhance the quality, utility, and clarity of the information
    collected.

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-   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.

99. Written comments by the public on the new information collec­tion are
    due 60 days after the date of publication in the [Federal
    Register]{.underline}. Written comments must be submitted by the OMB
    on the proposed and/or modified information collections on or before
    60 days after the date of publication in the [Federal
    Register]{.underline}. In addition to filing comments with the
    Secretary, a copy of any comments on the information collections
    contained herein should be submitted to Judith Herman, Federal
    Communications Commission, Room 1-C804, 445 Twelfth Street, S.W.,
    Washington, D.C. 20554, or via the Internet to
    Judith.Herman@fcc.gov, and to Kim Johnson, OMB Desk Officer, Room
    10236 New Executive Office Building, 725 Seventeenth Street, N.W.,
    Washington, D.C. 20503, or via the Internet to
    Kim_A.\_Johnson@omb.eop.gov.

## Accessible Formats

100. To request materials in accessible formats for individuals with
     disabilities (Braille, large print, electronic files, audio
     format), send an e-mail to [fcc504@fcc.gov]{.underline} or call the
     Consumer & Governmental Affairs Bureau at 202-418-0531 (voice), or
     202-418-7365 (tty).

# Ordering Clauses

101. IT IS ORDERED that, pursuant to the authority of sections 1, 4(i),
     7, 10, 201, 202, 208, 214, 301, 303, 308, 309(j), and 310 of the
     Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i),
     157, 160, 201, 202, 208, 214, 301, 303, 308, 309(j), and 310, the
     rule changes specified in Appendix C are adopted.

102. IT IS FURTHER ORDERED that the rule changes set forth in Appendix C
     WILL BECOME EFFECTIVE 60 days after publication in the [Federal
     Register]{.underline}.

103. IT IS FURTHER ORDERED that the information collections contained in
     this Report and Order WILL BECOME EFFECTIVE following approval by
     the Office of Management and Budget. The Commission will publish a
     document at a later date establishing the effective date.

104. IT IS FURTHER ORDERED that, in accordance with the guidelines set
     forth in this Report and Order, manufacturers of digital wireless
     telephones and providers of digital wireless services must submit
     reports every six months during the first three years of the
     implementation period established herein, and then annually
     thereafter through the fifth year of implementation.

105. IT IS FURTHER ORDERED that manufacturers must label packages
     containing compliant handsets as prescribed in this Report and
     Order.

106. IT IS ORDERED that digital wireless service providers must make
     available to consumers information on the performance ratings of
     compliant phones as prescribed in this Report and Order.

107. IT IS FURTHER ORDERED that we deny Myers Johnson, Inc.'s petition
     to modify section 24.232.

108. IT IS FURTHER ORDERED that the Commission\'s Office of Public
     Affairs, Reference Operations Division, SHALL SEND a copy of this
     Report and Order, including the Final Regulatory Flexibility
     Analysis, to the Chief Counsel for Advocacy of the Small Business
     Administration.

     FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX A**

**Parties Filing Comments**

(40 Commenters)

[Name of Party]{.underline} [Abbreviation]{.underline}

Alexander Graham Bell Association for the Deaf and Hard of Hearing AG
Bell

American National Standards Institute Accredited Standards ANSI ASC C63
SC8

Committee C63 for Electromagnetic Compatibility Subcommittee 8

(Medical Devices)

Mark Angelo

Arizona Commission for the Deaf and Hard of Hearing ACDHH

Association of Access Engineering Specialists AAES

AT&T Wireless Services AWS

ATX Technologies, Inc. ATX

Cellular Telecommunications & Internet Association CTIA

Cingular Wireless LLC Cingular

Cochlear Americas

Consumer Action Network CAN

Council of Organizational Representatives on National Issues COR

Concerning People Who are Deaf or Hard of Hearing

George DeVilbiss

Curtis F. Dickinson

Richard C. Diedrichsen

Dan Harper

Matthew Hayat

Hearing Industries Association HIA

John B. Klein

Charlene MacKenzie

Matsushita Electric Corporation of America MECA

Monty G. McCarley

Judith Michelman

Debbie Mohney

Alice Murphy

National Association of the Deaf NAD

Jack O'Keeffe

Rehabilitation Engineering Research Center RERC

on Telecommunications Access

Shirley Schultz

Self Help for the Hard of Hearing SHHH

Self Help for the Hard of Hearing -- New Hanover County

Mary T. Simmons

Sprint PCS

Elizabeth K. Stout

Jonathan Taylor

Telecommunications for the Deaf, Inc. TDI

Telecommunications Industry Association TIA

U.S. Access Board

Ronald H. Vickery

Betty Hannon Yagi

**Parties Filing Reply Comments**

(17 Reply Commenters)

[Name of Party]{.underline} [Abbreviation]{.underline}

Alexander Graham Bell Association for the Deaf and Hard of Hearing AG
Bell

Elizabeth Anderson

Cellular Telecommunications & Internet Association CTIA

Cingular Wireless LLC Cingular

George DeVilbiss

Hearing Industries Association HIA

Motorola

Dana Mulvany

National Association of the Deaf NAD

Nextel Communications, Inc. Nextel

Nextel Partners, Inc.

Rehabilitation Engineering Research Center RERC

on Telecommunications Access

Self Help for the Hard of Hearing SHHH

Jonathan Taylor

Telecommunications Industry Association TIA

Ronald H. Vickery

Jo Waldron

**APPENDIX B**

**FINAL REGULATORY FLEXIBILITY ANALYSIS**

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^220] an Initial Regulatory Flexibility Analysis (IRFA) was
    incorporated in the section 68.4(a) of the Commission's Rules
    Governing Hearing Aid-Compatible Telephones Notice of Proposed
    Rulemaking (*Notice*).[^221] The Commission sought written public
    comment on the proposal in the *Notice*, including comment on the
    IRFA. This present Final Regulatory Flexibility Analysis (FRFA)
    conforms to the RFA.[^222]

**A. Need for, and Objectives of, Adopted Rules**

109. In the *Order*, the Commission modifies the exemption for wireless
     phones under the Hearing Aid Compatibility Act of 1988 ("HAC
     Act")[^223] to require digital wireless phones to provide for
     effective use with hearing aids. We find that modifying the
     exemption in the manner described in the *Order* will extend the
     benefits of wireless telecommunication to persons with hearing
     disabilities, thereby increasing the value of the wireless network
     for all Americans. The Commission took the following actions:

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(1) adopted certain performance levels set forth in a technical standard
    established by the American National Standards Institute (ANSI) as
    the applicable technical standard for compatibility of digital
    wireless phones with hearing aids;

(2) required certain digital wireless phone models to provide reduced
    radio frequency (RF) interference (*i.e.,* meet a "U3" rating under
    the ANSI standard), and required certain digital wireless phone
    models to provide telecoil coupling capability (*i.e.* meet a "U3T"
    rating under the ANSI standard);

(3) required, within two years, each digital wireless phone manufacturer
    to make available to carriers and required each carrier providing
    digital wireless services to make available to consumers at least
    two handset models for each air interface it offers which offer
    reduced RF emissions ("U3" rating);

(4) required each Tier I wireless carrier providing digital wireless
    services to make available to consumers within two years at least
    two handset models for each air interface it offers for reduced RF
    emissions ("U3" rating) or 25 percent of the total number of phone
    models it offers, whichever is greater;

(5) required, within three years, each digital wireless phone
    manufacturer to make available to carriers and required each carrier
    providing digital wireless services to make available to consumers
    at least two handset models for each air interface it offers which
    provide telecoil coupling ("U3T" rating);

(6) adopted a *de minimis* exception for certain digital wireless phone
    manufacturers and carriers;

(7) encouraged digital wireless phone manufacturers and service
    providers to offer at least one compliant handset that is a
    lower-priced model and one that has higher-end features;

(8) required 50 percent of all digital wireless phone models offered by
    a manufacturer or carrier to be compliant with the reduced RF
    emissions requirements by February 18, 2008;

(9) required wireless carriers and digital wireless handset
    manufacturers to report semiannually (every six months) on efforts
    toward compliance during the first three years, then annually
    thereafter through the fifth year of implementation;

(10) required manufacturers to label packages containing compliant
     handsets and to make information available in the package or
     product manual, and required service providers to make available to
     consumers the performance ratings of compliant phones;

(11) committed the Commission staff to deliver a report to the
     Commission shortly after three years from the effective date of
     this *Order* to examine the impact of these requirements, and which
     will form the basis for the Commission to initiate a proceeding
     soon after the report is issued to evaluate whether to increase or
     decrease the 2008 requirement to make 50 percent of phone models
     with reduced RF emissions, whether to adopt implementation
     benchmarks beyond 2008, and whether to otherwise modify the
     implementation requirements;

(12) encouraged hearing aid manufacturers to label their
     pre-customization products according to the ANSI standard; and

(13) denied the petition of Myers Johnson, Inc., for revision of section
     24.232 as it relates to directional wireless phone antennas.

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110. The Commission takes these actions to ensure that that the
     Congressional goal of ensuring access to telecommunications
     services for persons with hearing disabilities is met. In addition,
     in light of our society's increased reliance on wireless phones and
     the growing trend among wireless carriers to move away from analog
     services in favor of more efficient, feature-rich digital services,
     these steps will ensure that people with hearing disabilities
     continue to enjoy access to wireless telecommunications devices and
     services.

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B.  **Summary of Significant Issues Raised by Public Comments in
    Response to the IRFA**

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111. We received no comments directly in response to the IRFA in this
     proceeding. The Commission, however, considered the potential
     impact of its rules on smaller handset manufacturers and service
     providers. To ensure that the rules have a minimal impact on these
     entities, the Commission, in recognition of the adverse effect its
     HAC compatibility percentage requirements could have, modified the
     requirement for manufacturers and service providers. Therefore, the
     requirement that manufacturers and service providers must make 50
     percent of their handsets compliant with the reduced RF emissions
     level ("U3") was modified to provide that, by February 18, 2008, 50
     percent of all phones offered by the entity in the U.S. market must
     be compliant, or two phones per air interface offered, whichever
     number of handsets is greater.[^224]

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C.  **Description and Estimate of the Number of Small Entities To Which
    the Adopted Rules Will Apply**

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112. The RFA directs agencies to provide a description of and, where
     feasible, an estimate of the number of small entities that may be
     affected by the adopted rules, if adopted.[^225] The RFA generally
     defines the term "small entity" as having the same meaning as the
     terms "small business," "small organization," and "small
     governmental jurisdiction."[^226] In addition, the term "small
     business" has the same meaning as the term "small business concern"
     under section 3 of the Small Business Act.[^227] Under the Small
     business Act, a "small business concern" is one that: (1) is
     independently owned and operated; (2) is not dominant in its field
     of operation; and (3) satisfies any additional criteria established
     by the Small Business Administration (SBA).[^228] A small
     organization is generally "any not-for-profit enterprise which is
     independently owned and operated and is not dominant in its
     field."[^229]

113. **Cellular and Other Wireless Telecommunications or Paging.** The
     SBA has developed a size standard for small businesses within the
     two separate categories of Cellular and Other Wireless
     Telecommunications or Paging. Under that standard, such a business
     is small if it has 1,500 or fewer employees.[^230] According to the
     FCC\'s *Telephone Trends Report* data, 1,761 companies reported
     that they were engaged in the provision of wireless service.[^231]
     Of these 1,761 companies, an estimated 1,175 have 1,500 or fewer
     employees and 586 have more than 1,500 employees. Consequently, we
     estimate that a majority of small wireless service providers may be
     affected by the rules.

114. **Wireless Communications Equipment Manufacturers.** The SBA has
     established a small business size standard for radio and television
     broadcasting and wireless communications equipment manufacturing.
     Under the standard, firms are considered small if they have 750 or
     fewer employees.[^232] Census Bureau data for 1997 indicates that,
     for that year, there were a total of 1,215 establishments[^233] in
     this category.[^234] Of those, there were 1,150 that had employment
     under 500, and an additional 37 that had employment of 500 to 999.
     The percentage of wireless equipment manufacturers in this category
     is approximately 61.35%,[^235] so the Commission estimates that the
     number of wireless equipment manufacturers with employment under
     500 was actually closer to 706, with an additional 23
     establishments having employment of between 500 and 999. The
     Commission estimates that the great majority of wireless
     communications equipment manufacturers are small businesses.

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D.  **Description of Reporting, Recordkeeping, and Other Compliance
    Requirements for Small Entities**

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115. The reporting, recordkeeping, or other compliance requirements
     adopted require that any and all of the affected entities to which
     the Commission's adopted rules apply must comply with the
     Commission's hearing aid compatibility rules adopted in the
     *Order*. The Commission has detailed the timeframes for compliance
     and was mindful of the needs of manufacturers and service
     providers. The timeframes, therefore, reflect the Commission's
     balancing of the competing interests. We ensure that access to
     wireless phones for persons with hearing disabilities is
     maintained, and also to ensure that manufacturers and service
     providers are afforded a reasonable amount of time within which to
     comply with our rules.

116. In the *Order*, the Commission requires wireless carriers and
     handset manufacturers to report every six months on efforts toward
     compliance with the requirements of the *Order* during the first
     three years, and then annually thereafter through the fifth year of
     implementation. These reports will serve dual purposes: they will
     assist us in monitoring the progress of implementation, and they
     will provide valuable information to the public concerning
     compatible handsets. The reporting requirement will extend through
     the end of the fifth year following the effective date of the
     *Order* to assist in verifying compliance with the requirement to
     make at least 50 percent of all phone models offered compatible by
     February 18, 2008. Digital wireless phone manufacturers and service
     providers may submit joint reports, if they wish, in order to
     minimize the reporting burden. The reports should describe
     manufacturer and carrier efforts aimed at complying with the
     requirements of the *Order*. Specifically, the reports should
     include (1) digital wireless phones tested; (2) laboratory
     used; (3) test results for each phone tested; (4) identification of
     compliant phone models and ratings according to ANSI C63.19; (5)
     report on the status of product labeling; (6) report on outreach
     efforts; (7) information related to retail availability of
     compliant phones; (8) information related to incorporating hearing
     aid compatibility features into newer models of digital wireless
     phones; (9) any activities related to ANSI C63.19 or other
     standards work intended to promote compliance with the
     *Order*; (10) total numbers of compliant and non-compliant phone
     models offered as of the time of the report; and (11) any ongoing
     efforts for interoperability testing with hearing aid devices.

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E.  **Steps Taken to Minimize Significant Economic Impact on Small
    Entities, and Significant Alternatives Considered**

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117. The RFA requires an agency to describe any significant alternatives
     that it has considered in reaching its adopted approach, which may
     include the following four alternatives (among others): (1) the
     establishment of differing compliance or reporting requirements or
     timetables that take into account the resources available to small
     entities; (2) the clarification, consolidation, or simplification
     of compliance or reporting requirements under the rule for small
     entities; (3) the use of performance, rather than design,
     standards; and (4) an exemption from coverage of the rule, or any
     part thereof, for small entities.[^236]

118. The critical nature of hearing aid compatibility with wireless
     phones limits the Commission's ability to provide small
     manufacturers of wireless handsets and wireless service providers
     with a substantially less burdensome set of regulations than that
     placed on large entities. In the *Order*, the Commission concludes
     that continuing the exemption afforded wireless phones under the
     HAC Act would have an adverse effect on individuals with hearing
     disabilities. Consumers who use hearing aids or cochlear implants
     indicate they have had difficulty finding either wireless phones
     they can use without suffering from annoying and sometimes painful
     interference, or without resorting to expensive and cumbersome
     external attachments. Consumers state that it is becoming very
     difficult to find analog wireless phones and services, and they are
     unable to use most digital wireless phones because of the resulting
     interference. By not being able to take advantage of most newer,
     digital wireless phones and services, hearing aid users assert they
     cannot take advantage of the attractive pricing and service plans
     available to other consumers, many of which include free or
     reduced-price phones, because the phones offered do not work with
     their hearing aids. Some consumers point out that their lack of
     ability to use a digital wireless phone causes them problems in
     their employment, particularly since many employers now rely on
     digital phones and services to stay in contact with employees in
     the field. A few consumers reported difficulty in finding a phone
     that works with their hearing aids because they were unable to test
     the phone before purchasing it. Some consumers expressed a desire
     to use a wireless phone for emergency use while away from home.
     However, because they are unable to find one they can use, they are
     forced to accept greater risks than non-hearing aid users since
     they are unable to call 911 even if they have access to a digital
     wireless phone.

119. In the *Order*, however, the Commission recognizes that certain
     manufacturers and service providers may have only a small presence
     in the market. For those manufacturers and service providers, the
     Commission adopted a *de minimis* exception. Specifically, if a
     manufacturer or carrier offers two or fewer digital wireless
     handset models in the U.S., it is exempt from the compatibility
     requirements in this Order. If a manufacturer or carrier offers
     three digital wireless handset models, it must make at least one
     compliant phone model available in two years. Furthermore, to the
     extent there are digital wireless providers that obtain handsets
     only from manufacturers that offer two or fewer digital wireless
     phone models in the U.S., the service provider would likewise be
     exempt from the rules. Similarly, if a service provider obtains
     handsets only from manufacturers that offer three digital wireless
     phone models in the U.S., that service provider would only have to
     offer one compliant handset model.[^237]

120. In addition, in considering the possible impact of our rules on the
     many small business owners that act as agents for service
     providers, the Commission crafted its labeling rules to allow these
     entities flexibility in how they convey the information persons
     with hearing disabilities will need to make an informed
     purchase.[^238]

**G. Report to Congress**

121. The Commission will send a copy of the *Order*, including this
     FRFA, in a report to be sent to Congress pursuant to the
     Congressional Review Act.[^239] In addition, the Commission will
     send a copy of the *Order*, including the FRFA, to the Chief
     Counsel for Advocacy of the Small Business Administration. A copy
     of the *Order* and FRFA (or summaries thereof) will also be
     published in the Federal Register. *See* 5 U.S.C. § 604(b).

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H.  **Effective Date of Adopted Rules**

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122. Pursuant to 5 U.S.C § 553(d),[^240] the rules adopted herein shall
     take effect thirty (30) days after publication in the [Federal
     Register]{.underline}.

**APPENDIX C -- FINAL RULES**

**Revise Part 20 to include New Hearing Aid Compatibility Provision as
follows:**

**\[§ 20.19\] Hearing Aid-Compatible Mobile Handsets.**

**(a) *Scope of section*. This section is applicable to providers of
Broadband Personal Communications Services (part 24, subpart E of this
chapter), Cellular Radio Telephone Service (part 22, subpart H of this
chapter), and Specialized Mobile Radio Services in the 800 MHz and 900
MHz bands (included in part 90, subpart S of this chapter) if such
providers offer real-time, two-way switched voice or data service that
is interconnected with the public switched network and utilizes an
in-network switching facility that enables the provider to reuse
frequencies and accomplish seamless hand-offs of subscriber calls. This
section also applies to the manufacturers of the wireless phones used in
delivery of these services.**

**(b) *Technical standard for hearing aid compatibility*. A wireless
phone used for public mobile radio services is hearing aid compatible
for the purposes of this section if it meets, at a minimum:**

**(1) for radio frequency interference: U3 as set forth in the standard
document ANSI C63.19-2001 "American National Standard for Methods of
Measurement of Compatibility between Wireless Communication Devices and
Hearing Aids, ANSI C63.19-2001" (published October 8, 2001 -- available
for purchase from the American National Standards Institute); and**

**(2) for inductive coupling: U3T rating as set forth in the standard
document ANSI C63.19-2001 "American National Standard for Methods of
Measurement of Compatibility between Wireless Communication Devices and
Hearing Aids, ANSI C63.19-2001" (published October 8, 2001 -- available
for purchase from the American National Standards Institute).**

**(3) Manufacturers must certify compliance with the test requirements
and indicate the appropriate U-rating for the wireless phone as set
forth in section 2.1033(d).**

**(c) *Phase-in for public mobile service handsets concerning radio
frequency interference*.**

**(1) Each manufacturer of handsets used with public mobile services for
use in the United States or imported for use in the United States must**

> **(A) offer to service providers at least two handset models for each
> air interface offered that comply with § 20.19(b)(1) by \[two years
> after publication in the Federal Register\]; and**
>
> **(B) ensure at least 50 percent of their handset offerings for each
> air interface offered comply with § 20.19(b)(1) by February 18,
> 2008.**

**(2) And each provider of public mobile service must**

> **(A) include in their handset offerings at least two handset models
> per air interface that comply with § 20.19(b)(1) by \[two years after
> publication in the Federal Register\] and make available in each
> retail store owned or operated by the provider all of these handset
> models for consumers to test in the store; and**
>
> **(B) ensure that at least 50 percent of their handset models for each
> air interface comply with § 20.19(b)(1) by February 18, 2008,
> calculated based on the total number of unique digital wireless
> handset models the carrier offers nationwide.**

**(3) Each Tier I carrier must**

> **(A) include in their handset offerings at least two handset models
> or 25 percent of the total number of unique digital wireless handset
> models offered by the carrier nationwide (calculated based on the
> total number of unique digital wireless handset models the carrier
> offers nationwide), whichever is greater, for each air interface that
> comply with § 20.19(b)(1) by \[two years after publication in the
> Federal Register\], and make available in each retail store owned or
> operated by the carrier all of these handset models for consumers to
> test in the store; and**
>
> **(B) ensure that at least 50 percent of their handset models for each
> air interface comply with § 20.19(b)(1) by February 18, 2008,
> calculated based on the total number of unique digital wireless phone
> models the carrier offers nationwide.**

(d) ***Phase-in for public mobile service handsets concerning inductive
    coupling*.**

> **(1) Each manufacturer of handsets used with public mobile services
> for use in the United States or imported for use in the United States
> must offer to service providers at least two handset models for each
> air interface offered that comply with § 20.19(b)(2) by \[three years
> after publication in the Federal Register\].**
>
> **(2) And each provider of public mobile service must include in their
> handset offerings at least two handset models for each air interface
> that comply with § 20.19(b)(2) by \[three years after publication in
> the Federal Register\], and make available in each retail store owned
> or operated by the provider all of these handset models for consumers
> to test in the store.**

**(e) *De minimis exception.***

> **(1) Manufacturers or mobile service providers that offer two or
> fewer digital wireless handsets in the U.S. are exempt from the
> requirements of this section.**

A.  **For mobile service providers that obtain handsets only from
    manufacturers that offer two or fewer digital wireless phone models
    in the U.S., the service provider would likewise be exempt from the
    requirements of this section.**

> **(2) Manufacturers or mobile service providers that offer three
> digital wireless handset models, must make at least one compliant
> phone in two years.**

(A) **Mobile service providers that obtain handsets only from
    manufacturers that offer three digital wireless phone models in the
    U.S. would be required to offer at least one compliant handset.**

**(f) *Labeling requirements*. Handsets used with public mobile services
that are hearing aid compatible, as defined in § 20.19(b) of this
chapter, shall clearly display the U-rating, as defined in 20.19(b)(1),
(2) on the packaging material of the handset. An explanation of the ANSI
C63.19-2001 U-rating system shall also be included in the owner's manual
or as an insert in the packaging material for the handset.**

**(g) *Enforcement*. Enforcement of this section is hereby delegated to
those states which adopt this section and provide for enforcement. The
procedures followed by a state to enforce this section shall provide a
30-day period after a complaint is filed, during which time state
personnel shall attempt to resolve a dispute on an informal basis. If a
state has not adopted or incorporated this section, or failed to act
within 6 months from the filing of a complaint with the state public
utility commission, the Commission will accept such complaints. A
written notification to the complainant that the state believes action
is unwarranted is not a failure to act. The procedures set forth in Part
68, Subpart E are to be followed.**

**Revise Section 2.1033:**

**\[§2.1033(d)\] Applications for certification of equipment operating
under Part 20, that a manufacturer is seeking to certify as hearing aid
compatible, as set forth in section 20.19 of that part, shall include a
statement indicating compliance with the test requirements of section
20.19 and indicating the appropriate U-rating for the equipment. The
manufacturer of the equipment shall be responsible for maintaining the
test results.**

**SEPARATE STATEMENT OF**

**CHAIRMAN MICHAEL K. POWELL**

*Re: In the Matter of Section 68.4(a) of the Commission's Rule Governing
Hearing*

*Aid-Compatible Telephones; WT Docket No. 01-309*

Today the Commission takes a historic step in making digital wireless
technologies accessible by consumers with disabilities by modifying the
Hearing Aid Compatibility exemption for wireless phones. For fifteen
years, the exemption has remained in place -- potentially walling off
full access to these groundbreaking technologies for millions of
Americans. Today we tear down that wall.

As a society we are diminished by our inability to communicate readily
with persons with hearing disabilities. Approximately one in ten
Americans has such a disability and experts expect that number only to
rise. As the technology and the marketplace have matured, it has become
increasingly clear that the exemption is no longer a tenable course.

I fundamentally believe that one of our core obligations as public
servants is to ensure that all Americans have access to transformative
communications technologies. The Commission has moved aggressively to
realize this goal through a number of initiatives including our Section
504 Handbook, funding of IP Relay, and our revised TRS rules. That
commitment is further illustrated by today's decision.

Our work is not yet complete. In the months and years ahead, we will
continue to work with the phone manufacturers, the hearing aid community
and wireless carriers to ensure that the goals established in this order
are met. The technical standard we adopt today relies on both cell phone
and hearing aid manufacturers to test and label their products in order
for consumers to make informed choices in the marketplace. We stand
ready to work cooperatively with all of these parties to make sure this
process works. Our next steps are not just with industry, however. The
Wireless and Consumer and Governmental Affairs Bureaus will be
partnering with other government and private groups to educate consumers
about compatibility. As part of this effort, I particularly appreciate
the Food and Drug Administration's commitment to work with the FCC to
educate consumers, audiologists, and other groups to ensure individuals
with hearing disabilities may take full advantage of these services.

**SEPARATE STATEMENT OF**

**COMMISSIONER KATHLEEN Q. ABERNATHY**

*Re: Section 68.4(a) of the Commission's Rules Governing Hearing Aid
Compatible Telephones, WT Docket No. 01-309, RM-8658*

Over the past few years, an increasing number of American consumers have
come to rely on their wireless phones for safety, business and personal
reasons. Accordingly, as wireless phones become even more pervasive, it
is imperative that we ensure these phones are available for use by all
consumers. Unfortunately, not all digital wireless phones provide access
to consumers who use hearing aids because of interference and other
technological issues. In today's item, we take an important step in
increasing digital wireless access by the hearing disabled community. We
are addressing the technological hurdles by requiring equipment
manufacturers and wireless service providers to reduce the amount of
interference emitted from digital wireless phones and to provide the
internal capability for telecoil coupling. This action will result in
members of the hearing disabled community having dramatically increased
access to digital wireless phones -- access that will improve their
lives and promote their safety.

The starting point for this proceeding is the Hearing Aid Compatibility
Act which states that when technology allows, wireless phones must come
into compliance with the Act's mandate. In this situation, we are driven
by Congressional intent, not by market forces. In light of changed
circumstances and improved technological capabilities, I believe that
continuing the blanket exemption for wireless phones from the Hearing
Aid Compatibility Act would be inconsistent with the intent of the Act,
as well as being detrimental to individuals with hearing disabilities.
Further, the record in this proceeding affirmatively demonstrates that
it is technologically feasible to manufacture a digital wireless phone
at a reasonable and marketable rate. The FCC, as required by the Hearing
Aid Compatibility Act, must respond to these changed circumstances by
updating its rules. Accordingly, I fully support modifying the blanket
exemption contained in the Hearing Aid Compatibility Act for wireless
phones to ensure that hearing disabled consumers have access to the
digital wireless world.

The successful implementation of our rules will require that wireless
phone equipment manufacturers and service providers, consumer advocacy
groups and hearing aid manufacturers work together to ensure that the
hearing disabled have access to the digital wireless phone that works
best for them. For instance, while our rules mandate the availability of
digital wireless phones that meet established ANSI standards for
interference, this does not necessarily mean that these phones will work
with every hearing aid. Accordingly, we encourage industry and consumer
advocacy groups to work together and be creative in reaching out to
specific segments of consumers, such as the elderly, to make sure that
they are aware of the choices available to them through our ruling
today. In addition, it is important that the hearing aid and wireless
phone industries institute policies to allow the hearing disabled
additional flexibility in ensuring that their digital wireless phones
and hearing aids work successfully together. At the end of the day our
goal, and the goal of Congress in passing the Hearing Aid Compatibility
Act is that "\[t\]he hearing impaired should have access to every
telephone like the non-hearing impaired."[^241]

**SEPARATE STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

Re: *Section 68.4 of the Commission's Rules Governing Hearing
Aid-Compatible Telephones, Notice of Proposed Rulemaking*

We all often talk about the power of technology to make American's lives
better. We talk about the transformative potential of innovation and
communications advances. We all recognize that it is the duty of this
Commission to work to make technology available to all Americans.

This duty comes into sharp focus in Orders like this. The first speech I
gave as a FCC Commissioner was in Sioux Falls, South Dakota, at the
14^th^ International Conference of Telecommunications for the Deaf. This
is where our responsibilities in this area became clear to me. I, along
with my colleagues, recognize the unique challenges faced by
hard-of-hearing Americans and the unique possibilities presented by
communications technologies to this community.

Congress also recognizes these challenges and opportunities, and has
told us that we must make communications technologies accessible by
people with disabilities. So my goal as a FCC Commissioner is to follow
the directive of Congress and to help bring the best, most accessible
and cost-effective telecommunications system in the world to our people
-- and I mean [all]{.underline} of our people. That means that each and
every American should have access to the wonders of wireless
telecommunications.

Today we take an important step toward that goal. We adopt the ANSI
performance standard and phase in a requirement that mobile phones meet
this standard. In two years 25 percent of all Tier One carriers' phones
must comply. On the day that the analog standard disappears a little
under five years from now, hard-of-hearing Americans will find that 50
percent of all wireless phones are compatible with their hearing aids.
And we don't stop there. Three years from now, when we have more
information on how implementation is progressing, we commit to begin a
proceeding to explore setting additional benchmarks above 50 percent.
Importantly, we state that our goal is 100 percent compliance. We have a
long way to go. But this is a good start.

With this action our Commission adds to a list of actions the past
Commission took to promote accessibility. The previous Commission wrote
new rules to ensure that communications products and services are
accessible to those with disabilities, as Congress directed, in Section
255; overhauled and updated our Telecommunications Relay Services (TRS)
rules to provide for faster, more effective relay services; established
711 for relay services so that consumers will no longer need to remember
different TRS numbers and TRS users will be able to put one number on
their business cards, thereby making it easier for people to call them;
and took action on captioning to ensure that everyone has access to
televised information, including, most importantly, warnings about
emergency situations. This Commission has maintained and in some
instances built upon these actions, and I'm happy to say that we
continue this trend today.

Furthermore, I want to recognize the dedication of the wireless industry
to serving people with disabilities. Over my tenure here I've seen a new
and vigorous commitment by manufacturers and carriers. These
manufacturers and the carriers are the ones who will make this Order
work, and their recent performance has been commendable.

I also want to congratulate the wide range of organizations that
represent people with hearing loss. They have been pushing the
Commission to take action for years and years on this proceeding. They
represent their community ably and professionally. And I want to stress
again the importance of this Commission always making special efforts to
reach out to our disabilities communities whose resources are stretched
thin but who are so profoundly affected by so many of the proceedings
before the FCC.

Finally, I want to thank my colleagues and the staff for their hard work
on this item. They were flexible and open to compromise. I appreciate
that and think that in the end the process of working together led to a
far better Order.

Thank you.

**SEPARATE STATEMENT OF\
COMMISSIONER KEVIN J. MARTIN**

*Re: Section 68.4(a) of the Commission's Rules Governing Hearing
Aid-Compatible Phones*, Report and Order, WT Docket No. 01-309, RM-8658

This item addresses a very important issue. Approximately one in ten
Americans -- and one in three over the age of 65 -- suffers from some
level of hearing loss. Many of these people are able to mitigate their
loss through the use of hearing aids and cochlear implants. Consumers
that use these devices, however, may suffer annoying and sometimes
painful interference when using digital wireless phones. Unlike analog
wireless phones, which do not generally cause interference for hearing
aid users, the electromagnetic energy emitted by digital phones'
antenna, backlight, and other components can cause interference to
hearing aids and cochlear implants. But digital phones have become
pervasive. Analog phones are not only becoming less and less available,
they increasingly do not offer the same services and pricing packages as
digital phones.

At the same time, the importance of wireless phones has grown
dramatically since Congress passed the Hearing Aid Compatibility Act of
1988 (HAC Act). Consumers have come to rely on the phones for
emergencies. Some are now substituting wireless phones for their
landline phones. Many employers now rely on wireless phones to stay in
contact with employees in the field.

This item recognizes the importance of wireless phones for all Americans
and concludes that, to the extent possible, hearing impaired individuals
should not be excluded. While exactly how to make this happen is a
difficult question, this item takes some important steps in the right
direction. Most importantly, this item adopts a standard for hearing aid
compatibility and establishes a specific timeframe for manufacturers and
carriers to make available hearing aid-compatible digital wireless
phones. These actions promote the Congressional goal of ensuring access
to telecommunications services for individuals with hearing disabilities
and are critical in light of the rising importance of wireless phones. I
am thus pleased to support the Order.

**SEPARATE STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

*Re: Section 68.4(a) of the Commission's Rules Governing Hearing
Aid-Compatible Telephones; WT Docket No. 01-309*

I am very pleased to support today's Report and Order because it takes
significant steps toward improving the access to digital mobile wireless
phones by those Americans who use hearing aids.

While the Hearing Aid Compatibility Act of 1988 (HAC Act) exempted
mobile wireless phones from hearing aid compatibility, Congress
specifically entrusted this Commission with periodically assessing the
appropriateness of continuing this exemption. Today, we take that
obligation to heart and rightly modify the exemption as it currently
applies to digital mobile wireless phones.

As I said recently, public interest issues, especially the rights of
those with hearing impairments, always should remain in the forefront of
our decisions. While a staff member in the U.S. Senate, I worked on the
Americans with Disabilities Act and devoted a great amount of attention
to the Social Security Disability Insurance program. These concerns
remain central to me on the Commission, as well.

I recognize that some may argue that it has taken the Commission too
long to reach the decision to modify the exemption and that our Report
and Order does not go far enough. Conversely, others may take the view
that we are exceeding our mandate in adopting requirements to
accommodate a relatively small number of customers. I believe that our
decision strikes the right balance between these divergent views. This
is consistent with the requirements of the HAC Act to consider a number
of competing issues in assessing the exemption such as the public
interest, the effect of the exemption on hearing-impaired individuals,
the state of technology, and the cost of compliance.

Most importantly, as a Commission, we have made a unanimous decision to
greatly improve accessibility to digital wireless telecommunications by
those with hearing impairments by requiring mobile wireless carriers and
manufacturers to increase the number of wireless phones that can be used
effectively with hearing aids. We also expressed our expectation that
the manufacturers of hearing aids take specific actions to assist their
customers in finding compatible hearing aids and digital wireless
handsets. We have stepped in where the market did not step up. I can
think of no more an appropriate action for a government agency to take
than the one we do today.

I would like to thank the staff of the Wireless Telecommunication Bureau
and its Policy Division for their hard work on an often challenging
item. Our decision is thoughtful but firm in its resolve. I look forward
to tracking the progress of our decision and its positive impact on the
hearing impaired community over the upcoming years.

[^1]: Section 710 of the Communications Act of 1934, as amended, 47
    U.S.C. § 710(b)(1)(B).

[^2]: *See* SHHH Comments at 2; SHHH *Ex Parte* Fact Sheet (May 19,
    2003).

[^3]: S*ee* American Speech-Language-Hearing Association \"Incidence and
    Prevalence of Hearing Loss and Hearing Aid Use in the United
    States - 2002 Edition\" (visited June 24, 2003)
    \<http://professional.asha.org/resources/factsheets/hearing.cfm\>.

[^4]: *See* Self Help for Hard of Hearing People, "Hearing Loss,
    Sept.-Oct., 1996" (visited April 17, 2003)
    \<http://www.shhh.org/Advocacy/Position/tcoil.cfm\>. *See* also
    HearingLoop.org "Frequent Questions" (visited June 26, 2003)
    \<http://www.hearingloop.org/fq_preferred.htm\>. Audio signal-based
    magnetic fields, such as those produced by the voice coil of the
    speaker in hearing aid-compatible wireline telephones, are picked up
    by the hearing aid telecoil, amplified as needed, and converted back
    into sound by the hearing aid speaker.

[^5]: *See* SHHH May 19, 2003, *Ex Parte* Fact Sheet; HIA Jan. 7, 2003,
    *Ex Parte* Presentation. Some commenters have claimed that at least
    some hearing aid users who have telecoils do not use them. *See*
    Cingular Dec. 18, 2002, *Ex Parte* at 5; AAES Comments at 6.

[^6]: *See* Vickery Comments at 3; AG Bell Comments at 4, 6.

[^7]: *See* ANSI ASC C63 SC8 Comments at 10.

[^8]: *See* Vickery Comments at 19, 22. *See also* L. Kozma-Spytek,
    M.A., Research Audiologist, Gallaudet University Technology Access
    Program, Washington, D.C., "Digital Wireless Telephones and Hearing
    Aids" (visited June 17, 2003) \<www.audiologyonline.com\> and B.J.
    Wilson, "Why Don't Cell Phones Work With Hearing Aids?" (visited
    Feb. 2, 2003)
    \<http://www.geocities.com/Heartland/Prairie/4727/bbhcellemi.htm\>.

[^9]: *See* Implementation of Section 6002(b) of the Omnibus Budget
    Reconciliation Act of 1993, Annual Report and Analysis of
    Competitive Market Conditions With Respect to Commercial Mobile
    Services Report, *Eighth Report*, at sections II.C.1.b.(i) and
    II.C.1.d. (2003) (*Eighth Competition Report*).

[^10]: *See* Implementation of Section 6002(b) of the Omnibus Budget
    Reconciliation Act of 1993, Annual Report and Analysis of
    Competitive Market Conditions With Respect to Commercial Mobile
    Services Report, *Seventh Report*, 17 FCC Rcd 12985, 13017 (2003)
    (*citing* a poll that indicates one in five wireless telephony users
    considers their wireless phone to be their primary phone) (*Seventh
    Competition Report*).

[^11]: *Eighth Competition Report* at section II.C.1.b.(i).

[^12]: *Seventh Competition Report*, 17 FCC Rcd 12985, 13009.

[^13]: The National Emergency Number Association (NENA) estimates that,
    of the 150 million calls that were made to 911 in 2000, 45 million
    of them (30 percent) were made by wireless telephone users. NENA
    anticipates that, by 2005, the majority of 911 calls will be from
    wireless callers. *See* "Wireless 9-1-1 Overview" (visited June 26,
    2003) \<http://www.nena9-1-1.org/Wireless911/Overview.htm\> (NENA
    Wireless 9-1-1 Overview).

[^14]: *See* H.R. Rep. No. 100-674, at 7 (1988) (*House Report*).

[^15]: *Id*.

[^16]: *Id.* at 3.

[^17]:

[^18]: *See* 47 U.S.C. § 610(b)(1)(B). Congress defined the "essential
    phones" required to comply as "only coin-operated phones, telephones
    provided for emergency use, and other telephones frequently needed
    for use by persons using \[compatible\] hearing aids." *See* 47
    U.S.C. § 610(b)(4)(A). The Act also forbade the Commission from
    requiring retrofitting of equipment to achieve the purposes of the
    Act, except for coin-operated telephones and telephones provided for
    emergency use. *See* 47 U.S.C. § 610(f).

[^19]: *See* 47 U.S.C. § 610(b)(1).

[^20]: *See* *House Report* at 9. *See* *also* 47 U.S.C. § 610(b)(2)(A).
    Public mobile services are air-to-ground radiotelephone services,
    cellular radio telecommunications services, offshore radio services,
    rural radio services, public land mobile telephone services, and
    other common carrier radio communications services covered by Part
    22 of our rules. *See* 47 U.S.C. § 610(f); 47 C.F.R. § 68.3. The
    term public mobile services was subsequently reclassified as
    commercial mobile radio service (CMRS). *See* Implementation of
    Sections 3(n) and 332 of the Communications Act, Regulatory
    Treatment of Mobile Services, Second Report and Order, 9 FCC Rcd
    1411 (1994) (implementing Section 6002(b) of the Omnibus Budget
    Reconciliation Act of 1993).

[^21]: 47 U.S.C. § 610(b)(2)(C).

[^22]: 47 U.S.C. § 610(b)(2)(C); 47 C.F.R. § 68.4(a)(4). Although the
    Commission announced that it would review the exemptions every five
    years, it has not done so since their initial promulgation in 1989.
    Access to Telecommunications Equipment and Services by the Hearing
    Impaired and Other Disabled Persons, 4 FCC Rcd 4596, 4600 (1989).

[^23]: *See* Access to Telecommunications Equipment and Services by the
    Hearing Impaired and Other Disabled Persons, CC Docket No. 87-124,
    *First Report and Order*, 4 FCC Rcd 4596 (1989).

[^24]: *See* Access to Telecommunications Equipment and Services by
    Persons With Disabilities, CC Docket No. 87-124, *Notice of Proposed
    Rulemaking*, 11 FCC Rcd 4338 (1995). The rules required that, with
    minor exceptions, all wireline telephones in hospitals and other
    health care facilities, in hotels and motels, in prisons, and in all
    workplaces be made telecoil compatible by May 1, 1993. The
    Commission subsequently stayed its rules and impaneled a Rulemaking
    Committee, which proposed rules that the Commission sought comment
    on in 1995.

[^25]:

[^26]: *See Wireline HAC Order*, 11 FCC Rcd 8249, 8279. *See also* 47
    C.F.R. §§ 68.6, 68.317.

[^27]: *See Wireline HAC Order*, 11 FCC Rcd 8249, 8251.

[^28]: *See* 47 C.F.R. § 68.4. *See also* 47 C.F.R. § 68.316.

[^29]: *See Wireline HAC Order*, 11 FCC Rcd 8249, 8291. *See also* 47
    C.F.R. § 68.300.

[^30]: Americans with Disabilities Act of 1990, Pub. L. 101-336, 104
    Stat. 328 (1990), *codified at* 42 U.S.C. §§ 12101-12213 (ADA).

[^31]: Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56
    (1996) (1996 Act).

[^32]: *See Wireline HAC Order*, 11 FCC Rcd 8249, 8258-59. *See also* 42
    U.S.C. § 12201(b).

[^33]: *Codified at* 47 U.S.C. § 152 nt. Section 601(c) of the 1996 Act,
    Pub. L. 104-104, Title VII, § 601, Feb. 8, 1996, 110 Stat. 143, is
    reproduced in the notes under 47 U.S.C. § 152.

[^34]: *See Wireline HAC Order*, 11 FCC Rcd 8249, 8259-60.

[^35]: *See* HEAR-IT NOW Petition at 5-8.

[^36]: HEAR-IT NOW Petition at Appendices 1-4.

[^37]: *See* HEAR-IT NOW Petition at 5-6.

[^38]: *See* Wireless Telecommunications Bureau Fiscal Year 1995-1996
    Progress Report, 1996 WL 668142 (Nov. 19, 1996). Invitees to the
    summit included representatives from the digital wireless phone
    industry, organizations representing individuals with hearing loss,
    and hearing aid manufacturers.

[^39]: *See* Letter from Pamela J. Ransom, Summit Facilitator, to
    Chairman Reed Hundt, FCC (May 16, 1996) (Summit Agreement).

[^40]: *Id*.

[^41]: *Id*.

[^42]:

[^43]: *Id*.

[^44]: *Id*.

[^45]: "Investigation of the Interaction Between Wireless Phones and
    Hearing Aids, Phase III-B: Subjective Validation Study" at 31,
    University of Oklahoma Center for the Study of Wireless
    Electromagnetic Compatibility, performed for ANSI C63.19 (October
    1999).

[^46]: *See* ANSI C63.19 at 1-2.

[^47]: *See* Petition for Rulemaking of Helping Equalize Access Rights
    in Telecommunications Now (HEAR-IT NOW), In the Matter of Section
    68.4(a) of the Commission's Rules, Hearing Aid-Compatible Phones,
    RM-8658 (filed June 5, 1995) (HEAR-IT NOW Petition); Request of WAC
    to Reopen the Petition for Rulemaking, RM-8658 (filed October 10,
    2000) (WAC Request).

[^48]: *See* WAC Request at 2.

[^49]: *Id*. at 3.

[^50]: *Id*.

[^51]: *Id*. at 4.

[^52]:

[^53]: *Notice*, 16 FCC Rcd 20558, 20564-65.

[^54]: *Id*.*,* 16 FCC Rcd 20558, 20565.

[^55]: *Id*., 16 FCC Rcd 20558, 20567.

[^56]: *Id*., 16 FCC Rcd 20558, 20568.

[^57]: *Id*., 16 FCC Rcd 20558, 20568.

[^58]:

[^59]: *Id*., 16 FCC Rcd 20558, 20569. The pairing approach would test
    and categorize digital wireless phones and hearing aids based on the
    phone's RF emission levels and magnetic field quality, and the
    hearing aid's immunity to interference, as specified in the ANSI
    C63.19 standard. The information could then be used to pair a
    hearing aid and wireless phone based on their respective ratings.
    *See* ANSI C63.19 at 1-5.

[^60]: *Id*., 16 FCC Rcd 20558, 20569.

[^61]: *Id*., 16 FCC Rcd 20558, 20569-70.

[^62]: *Id*.,16 FCC Rcd 20558, 20570-71.

[^63]: See Year 2000 Biennial Review -- Amendment of Part 22 of the
    Commission's Rules to Modify or Eliminate Outdated Rules Affecting
    the Cellular Radiotelephone Service and Other Commercial Mobile
    Radio Services, WT Docket No. 01-108, Report and Order, 17 FCC Rcd
    18401, 18414-20 (2002) (*Analog Sunset Order*).

[^64]: *Id*., 17 FCC Rcd 18401, 18406.

[^65]: *Id*.

[^66]: *Id*.

[^67]: *See* "Hearing aids" (visited June 26, 2003)
    \<http://www.hearingaidhelp.com/hearingaids.html\>. *See also*
    "Telecoils in Hearing Aids in the USA" (visited June 26, 2003)
    \<http://hohadvocates.org/telecoils.htm\>. Some commenters indicate
    that there may be some hearing aid users who do not utilize the
    telecoil functionality, even though it is included in their hearing
    aids. *See* AAES Comments at 3-6; CTIA Comments at 9.

[^68]: *See supra* note Error: Reference source not found. *See also* D.
    Mulvany, MSW, LCSW, "Choices in Hearing Aids" (visited March 14,
    2002) \<http://members.tripod.com/\~Dana_Mulvany/HearingAids.htm\>.

[^69]: *See* Dr. D.K. Eddington and M.L. Pierschalla, "Cochlear Implants
    Restoring Hearing to the Deaf," *The Harvard Mahoney Neuroscience
    Institute Letter On The Brain*, Fall 1994 Volume 3, Number 4
    (visited Feb. 28, 2003)
    \<http://www.med.harvard.edu/publications/On_The_Brain/Volume3/Number4/Cochlear.html\>.
    *See also* "How a Cochlear Implant Works" (visited June 26, 2003)
    \<http://www.earsugery.org/howto.html\> and P.C. Loizou,
    "Introduction to cochlear implants" (visited Feb. 28, 2003)
    \<http://www.utdallas.edu/\~loizou/cimplants/tutorial/tutorial.htm\>.

[^70]: *See* Center On Disabilities Technology And Persons With
    Disabilities , "Conference 2003 Conference Proceedings" (visited
    June 26, 2003)
    \<http://www.csun.edu/cod/conf/2003/proceedings/133.htm\>.

[^71]: *See* Vickery Comments at 9, 11. *See* also University of
    Oklahoma Wireless EMC Center "Investigation of the Interaction
    Between CDMA Wireless Phones and Hearing Aids" (visited Jan. 8,
    2003) \<http://www.ou.edu/engineering/emc/projects/CDG.html\>; H. S.
    Berger, TEM Consulting, "ANSI C63.19 Hearing Aid/Cellular Telephone
    Compatibility" (visited Feb. 27, 2003)
    \<http://www.ieee.org/organizations/pubs/newsletters/emcs/sprng01/stan_act.htm\>.
    RF emissions from the antenna of a handset operating with a digital
    air interface are more likely to produce interference that renders a
    hearing aid inoperable than those from a handset operating with an
    analog air interface. The Code Division Multiple Access (CDMA)
    digital interface provides the lowest levels of interference, with
    Time Division Multiple Access (TDMA), and TDMA variations such as
    GSM and Integrated Digital Enhanced Network (iDEN), producing the
    most interference. *See* "Preliminary Results SHHH Mobile Phone
    Survey September 2002" (visited June 17, 2003)
    \<http://www.shhh.org/Advocacy/mppreliminarysurvey.cfm\>.

[^72]: *See* D. Mulvany and R. Vickery, "An Analysis of Inductive
    Coupling and Interference Issues in Digital Wireless Phones:
    Technically Feasible Solutions" (visited June 17, 2003)
    \<http://hearingloss.org/html/accdigwire752a.html\>.

[^73]: *See* HIA Comments at 4; HIA Feb. 15, 2002, *Ex Parte*
    Presentation at 1.

[^74]: *See* "Power Support" (visited July 2, 2003)
    http://www.oticon.com/eprise/main/Oitcon/com/SEC_Professional/PowerSupprt/AssistiveListeningDevise/CNT03_CellularPhones;
    "SELF HELP FOR HARD OF HEARING PEOPLE: FAQ Assisted Listening
    Device" (visited July 2, 2003)
    \<http://www.shhh.org/faq/3.cfm?pf=1\>. Digital hearing aids,
    however, can be significantly more expensive than analog hearing
    aids. *See* "Buy Hearing Aids" (visited June 26, 2003)
    \<http://deafness.about.com/cs/buyaids/\>.

[^75]: 47 U.S.C. § 610(c).

[^76]: 47 C.F.R. § 68.3. Private mobile radio services are private land
    mobile radio services and other communications services
    characterized in our rules as private radio services. *Id.*

[^77]: *See* Implementation of Sections 3(n) and 332 of the
    Communications Act, Regulatory Treatment of Mobile Services, Second
    Report and Order, 9 FCC Rcd 1411 (1994). We note that "commercial
    mobile radio service" is defined as a mobile service that is:
    "(a)(1) provided for profit . . . (2) An interconnected service; and
    (3) Available to the public, or to such classes of eligible users as
    to be effectively available to a substantial portion of the public;
    or \[the functional equivalent thereof\]." *See* 47 C.F.R. § 20.3.

[^78]: *See* 47 C.F.R. § 20.18(a) (identifying carriers subject to E911
    rules); 47 C.F.R. § 52.21(c) (identifying carriers subject to local
    number portability rules).

[^79]: Broadband PCS is described in Part 24, Subpart E of our rules, 47
    C.F.R. §§ 24.200-24.253.

[^80]: Cellular Radio Telephone Service is described in Part 22, Subpart
    H of our rules, 47 C.F.R. §§ 22.900-22.967.

[^81]: These services are described in Part 90, Subpart S of our rules,
    47 C.F.R. §§ 90.601-90.699.

[^82]: *See House Report* at 8.

[^83]: *Id.* at 8.

[^84]: *Id.* at 8.

[^85]: 47 U.S.C. § 610(a).

[^86]: The HAC Act requires the Commission to determine whether
    "compliance with the requirements . . . would not increase costs to
    such an extent that the telephones to which the exemption applies
    could not be successfully marketed." 47 U.S.C. § 610(b)(2)(C)(iv).

[^87]: *See* AG Bell Comments at 6; SHHH Comments at 6; TDI Comments at
    2-4; Anderson Comments; Angelo Comments; DeVilbiss Comments at 1;
    Diedrichsen Comments; Harper Comments; Klein Comments; MacKenzie
    Comments; Taylor Comments at 3; Vickery Comments at 3. *See also*
    Letter from Nancy A. Dietrich to Office of the Secretary, FCC, WT
    Docket No. 01-309 (May 8, 2002); Letter from Lisa Devlin to Office
    of the Secretary, FCC, WT Docket No. 01-309 (March 11, 2002).

[^88]: *See* SHHH Comments at 6-7; Consumer Action Network Comments at
    2; TDI Comments at 2-5; Yagi Comments.

[^89]: *See* AG Bell Comments at 10; Klein Comments; NAD Comments at
    1-2; TDI Comments at 5.

[^90]: AG Bell Comments at 3; Consumer Action Network Comments at 2; NAD
    Comments at 2; TDI Comments at 5; MacKenzie Comments; McCarley
    Comments; Waldron Reply Comments at 1; Simmons Comments.

[^91]: AG Bell Comments at 14; Anderson Comments at 1-2; MacKenzie
    Comments.

[^92]: *See* Murphy Comments; Bahl Comments at 2; Mohney Comments;
    Schultz Comments; Vickery Comments at 5. There are also adverse
    effects upon the hearing population which flow from the wireless
    exemption. *See* Arizona Commission for the Deaf and Hard of Hearing
    Comments at 3 (describing effects such as businesses' loss of
    resources, impacts on families and friends of individuals with
    hearing disabilities, as well as the need for support services when
    individuals are communicatively isolated).

[^93]: RERC Comments at 4.

[^94]: *See* AG Bell Comments at 5-6; SHHH Comments at 7; TDI Comments
    at 4.

[^95]: CTIA Comments at 3-8; TIA Comments at 5.

[^96]: *See* AAES Comments at 3-6; CTIA Comments at 9; Sprint PCS
    February 4, 2003, *Ex Parte* at 5.

[^97]: *See* Sprint PCS Comments at 11-14; TIA Comments at 13-22; Nextel
    Reply Comments at 4, 7-8.

[^98]: *See* HIA Feb. 20, 2003, *Ex Parte* Presentation at 2-3; Cochlear
    Americas Comments at 3.

[^99]: *See* AAES Comments at 8; Cingular/Siemens October 23, 2002, *Ex
    Parte* Letter at 11.

[^100]: *See* ANSI C63.19 at 10. *See also* "Induction Loop Systems"
    (visited July 7, 2003) \<http://www.dt4u.com/dtsystems/loopmed.htm\>
    and S.C. Ewens, "[LIMITS OF INDUCTIVE COUPLING IN HEARING AIDS,"
    *TELEPHONES AND HEARING AIDS PROCEEDINGS OF COST 219
    SEMINAR*]{.smallcaps}, *The Hague, 17^th^ of March 1993*, Commission
    of the European Communities Information Technologies and Sciences,
    "telecommunications and disability," Edited by Patrick R.W. Rowe
    (visited June 26, 2003)
    \<http://www.stakes.fi/cost219/HAGUE93.DOC\>.

[^101]: Representatives of the wireless industry participated in the
    ANSI C63.19 Task Group which developed the standard. *See* ANSI
    C63.19 at iii-iv (participants included Ericsson, Motorola, Nokia,
    Pacific Bell Mobile Services, Qualcomm, and Siemens). In addition,
    several wireless handset manufacturers state that they have begun
    testing under ANSI C63.19, and some have made efforts to produce
    lighter, less cumbersome accessories. For example, Nokia reports
    that it has updated its neck loop for inductive coupling to
    eliminate the need for separate batteries. CTIA has established an
    Internet web site, which is available at \<www.accesswireless.org\>,
    to provide information on wireless phones that provide hearing aid
    compatibility characteristics. *See* CTIA June 13, 2003, *Ex Parte*
    at 1-2.

[^102]: *See* *Analog Sunset Order*, 17 FCC Rcd 18401, 18417.

[^103]: AT&T Wireless Comments at 3; AG Bell Comments at 4; Consumer
    Action Network Comments at 2.

[^104]: Implementation of Sections 255 and 251(a)(2) of the
    Communications Act of 1934, As Enacted by the Telecommunications Act
    of 1996: Access to Telecommunications Service, Telecommunications
    Equipment and Customer Premise Equipment by Persons With
    Disabilities, WT Docket No. 96-198, Report and Order and Further
    Notice of Inquiry, 16 FCC Rcd 6417, 6420 (1999) (*Section 255
    Order*).

[^105]: NENA Wireless 9-1-1 Overview, *see supra* note Error: Reference
    source not found.

[^106]: *See supra* note 11, *Eighth Competition Report* at section
    II.C.1.b.(i).

[^107]: *See supra* note 12, *Seventh Competition Report*, 17 FCC Rcd
    12985, 13009.

[^108]: *See supra* note 10, *Seventh Competition Report*, 17 FCC Rcd
    12985, 13017 (*citing* a poll that indicates one in five wireless
    telephony users considers their wireless phone to be their primary
    phone).

[^109]: *See* Federal-State Joint Board on Universal Service, Report and
    Order, 12 FCC Rcd 8776, 8783 (1997) ("Increasing subscriber ship
    also benefits society in ways unrelated to the value of the network
    per se. For example, all of us benefit from the widespread
    availability of basic public safety services, such as 911.").

[^110]: *See Analog Sunset Order*, 17 FCC Rcd 18401, 18406.

[^111]: *See* F.M. Caimi, Ph.D., Senior Scientist, \"MLA Antennas -
    Physically Small, Electrically Large\" (visited March 5, 2003)
    \<http://www.skycross.com/MLA_antenna.asp\>.

[^112]: *See* Cochlear Americas May 16, 2003, *Ex Parte* at 2.

[^113]: Cochlear implant manufacturers indicate that they are beginning
    to incorporate telecoils into newer cochlear implant models. *See*
    Cochlear Americas May 16, 2003, *Ex Parte* at 2. As a result,
    cochlear implant users will benefit from telecoil coupling
    capability as well as reduced RF emissions from digital wireless
    handsets.

[^114]: *See* 47 U.S.C. § 610(b)(1)(B).

[^115]: ANSI C63 is the Accredited Standards Committee on
    Electromagnetic Compatibility.

[^116]: *See* ANSI C63.19 at iii.

[^117]: HIA *Ex Parte*, filed Mar. 26, 2003 (indicating that HIA voted
    against ANSI C63.19, but expressing support for its application in
    today's manufacturing environment).

[^118]: *See* ANSI C63.19 at 1-2.

[^119]: *See* ANSI C63.19 at 38-39.

[^120]: *See supra* note Error: Reference source not found.

[^121]: *See* ANSI C63.19 at 40.

[^122]: *See* ANSI C63.19 at 39.

[^123]: *See* ANSI ASC C63 SC8 Comments at 16 (stating that tests
    indicate the standard is 96 percent predictive of usability).

[^124]: *Notice*, 16 FCC Rcd 20558, 20560.

[^125]: *See generally* ANSI ASC C63 SC8 Comments; AAES Comments at
    9-10.

[^126]: *See* ANSI ASC C63 SC8 March 21, 2003, *Ex Parte* Letter at 2-3;
    Motorola May 5, 2003, *Ex Parte* Letter at 1; Nokia July 1, 2003,
    *Ex Parte* Presentation at 8.

[^127]: These air interfaces include CDMA, GSM, iDEN, and TDMA. *See*
    Motorola January 31, 2003, *Ex Parte* at 16, and Nokia July 3, 2003,
    *Ex Parte* Letter.

[^128]: *See* Vickery Comments at 7-10; L. Kozma-Spytek, M.A. Research
    Audiologist, Gallaudet University Technology Access Program,
    Washington, D.C., "Digital Wireless Telephones and Hearing Aids"
    (visited June 17, 2003) \<www.audiology.com\>.

[^129]: *See* Sprint Feb. 4, 2003, *Ex Parte* Presentation at 4.

[^130]: The use of shunt traces, which are alternative paths for
    interfering currents, is reportedly one of the most effective means
    for reducing emissions from printed circuit boards. *See* S. A.
    Bokhari, "Analysis of the effect of Shunt Traces on the Radiation
    from Printed Circuit Boards," *Proceedings of the 1998 IEEE
    International Symposium on Electromagnetic Compatibility*, Vol. 1,
    July 1998, at 621.

[^131]: *See* N. Quesnel, "Optimizing EMI Shielding for Wireless
    Systems" (visited Feb. 25, 2003)
    \<http://www.chomerics.com/tech/EMI_shld\_%20Artcls/Wireless%20EMI%20Shielding.pdf\>.
    Ericsson has developed a shield for its model T10s wireless phone
    that reduces the specific absorbed radiation by approximately 87
    percent, while actually increasing the relative radio frequency
    power transmitted by approximately 45 percent. *See* M.I. Manning
    and M. Densley, "SARTest Report 0113 June 2001 On the Effectiveness
    of Various Types of Mobile Phone Radiation Shields" prepared for the
    United Kingdom Department of Trade and Industry (visited Feb. 25,
    2003) \<http://www/dti.gov.uk/cii/docs/R500016att.pdf\> at 7.

[^132]: *See* Sprint February 4, 2003, *Ex Parte* at 5.

[^133]: Typically, a nickel coating is applied over the copper, or other
    susceptible metal, to protect it from environmental exposure. *See*
    B. C. Jackson and G. Shawhan, "Current Review of the Performance
    Characteristics of Conductive Coatings for EMI Control,"
    *Proceedings of the 1998 IEEE International Symposium on
    Electromagnetic Compatibility*, Vol. 1, July 1998, at 568.

[^134]: *See* Sprint February 4, 2003, *Ex Parte* at 5. Capacitor
    filters have gain that is dependent on signal frequency.

[^135]: *See* K. Lacanette, "A Basic Introduction to Filters -- Active,
    Passive, and Switched-Capacitor," *National Semiconductor
    Corporation Application Note 779*, April 1991 (visited March 11,
    2003)
    \<http://www.swarthmore.edu/NatSci/echeeve1/Ref/DataSheet/IntroToFilters.pdf\>.

[^136]: *See* T. Raper and S. Knauber, "Designing for Electromagnetic
    Interference (EMI) Compliance," March 1999 (visited June 26, 2003)
    \<http://www.amd.com/epd/processors/2.16bitcont/16bitmc/22507/22507.pdf\>.

[^137]: *See* Sprint PCS February 4, 2003, *Ex Parte* at 5.

[^138]: Inductive field cancellation is accomplished by configuring
    conductors in such a way so the positive field generated by one
    conductor is nearly cancelled by the negative field produced by the
    other conductor. *See* *Ex Parte* Letter from George DeVilbiss to
    Edmond Thomas, WT Docket No. 01-309 (filed February 26, 2003). *See
    also* P. Giddings, PE, "Getting a Perspective on Noise in Audio
    Systems" (visited June 26, 2003)
    \<http://www.engineeringharmonics.com/papers/gpnas.htm\>.

[^139]: *See* Sprint February 4, 2003, *Ex Parte* Letter at 5. *See
    also* Samsung March 3, 2003, *Ex Parte* Letter at 1.

[^140]: Some carriers are considering deploying directional phone and
    base stations antennas in so-called "diversity schemes" in order to
    improve wireless system performance and reduce the number of base
    stations needed. *See* D. McDonough, Jr., "Building a Better
    Wireless Antenna," *Wireless News Factor,* June 5, 2002 (visited
    March 5, 2003) \<http://www.skycross.com/WNF_06052002.asp\>. *See
    also* C. Beckman, "Development Trends in Antennas for Mobile
    Phones," Portable 2001 Conference, February 13-15, 2001, San Jose,
    CA (visited Feb. 19. 2003)
    \<http://www.s3.kth.se/signal/edu/seminar/01/Portable2000.pdf\>; J.
    H. Winters, "Smart Antennas for Wireless Systems," *IEEE Personal
    Communications,* February 1998 at 23-27; F. Viquez, "Smart Antenna
    Deployment in Next-Generation Wireless Systems" (visited Feb. 19,
    2003) \<http://www.base-earth.com/march-april2002/allied.html\>.

[^141]: *See* Myers Johnson Petition at 3; Damax Oct. 21, 2002, *Ex
    Parte* at 1-2.

[^142]: *See* CTIA Comments at 23; Sprint Feb. 4, 2003, *Ex Parte*
    Presentation at 5.

[^143]: *See* note Error: Reference source not found, *supra.*

[^144]: *See* A.J. Paulraj, D. Gesbert, C. Papadias, \"Smart Antennas
    for Mobile Communications,\" *Paulraj, Gesbert, Papadias
    Encyclopedia for Electrical Engineering*, John Wiley Publishing Co.,
    2000 (visited March 5, 2003)
    \<[http]{.underline}://heim.ifi.uio.no/\~gesbert/papers/encyclopedia_chapter.pdf\>.

[^145]: See Cingular/Siemens January 22, 2003, *Ex Parte* at 5. In
    addition, stating its belief that the section 24.232 of our rules
    restricts the use of directional antennas in wireless phones, Myers
    Johnson, Inc., has petitioned the Commission to amend section 24.232
    of our rules to limit the power supplied to the antenna to 32 dBm
    (1.584 Watts), and to require the equipment to employ the means to
    limit the power to the minimum necessary for successful
    communications. *See* Myers Johnson Petition at 1-4 (filed Jan. 27,
    2003).

[^146]: *See* 47 C.F.R. § 24.232(b).

[^147]: *See* Myers Johnson Petition at 1-4.

[^148]: Nokia July 1, 2003, *Ex Parte* at 8. *See also* Nokia July 3,
    2003, *Ex Parte* Letter (confirming that some of its phones meet the
    U3 and U3T criteria).

[^149]: *See* Letter from Diane Cornell, CTIA, to Marlene Dortch, FCC,
    WT Docket No. 01-309 at 2-3 (June 13, 2003) (CTIA June 13, 2003, *Ex
    Parte* Letter); Cingular May 16, 2003, *Ex Parte* Letter at 2;
    Motorola May 5, 2003, *Ex Parte* Letter at 1; Sprint July 3, 2003,
    *Ex Parte* Letter at 1.

[^150]: *See* ANSI C63.19 at 40-42.

[^151]: *See* CTIA Comments at 5; Motorola Comments at 4; Sprint PCS
    Comments at 28. *See also* "Motorola Products and Services Features"
    (visited May 6, 2003)
    \<http://commerce.motorola.com/consumer/QWhtml/accessibility/features.html\>.

[^152]: *See* ANSI C63.19 at 35.

[^153]: *See Ex Parte* Letter from Muzibul H. Khan, Samsung, in WT
    Docket No. 01-309 (March 3, 2003).

[^154]: *See* SHHH September 12, 2002, *Ex Parte* Presentation,
    Preliminary Results of SHHH Mobile Phone Survey at 2 and Comments on
    Accessories from Survey Respondents at 1; Dana Mulvany Reply
    Comments at 1; Letter from Susan Matt to Washington State SHHH
    Members (visited June 17, 2003)
    \<http://www.wasa-shhh.org/telecommunications.htm\>.

[^155]: *See* Audex Aug. 2, 2002, *Ex Parte* Letter at 1.

[^156]: The Audex CHAAMP accessory is currently designed to work with
    Nokia handsets. *See* Audex Aug. 2, 2002, *Ex Parte* at 1.

[^157]: *See* Audex Aug. 2, 2002, *Ex Parte* at 1.

[^158]: 47 U.S.C. § 610(b)(2)(C)(iv).

[^159]: *See* *supra* note Error: Reference source not found; Motorola
    Jan. 21, 2003, *Ex Parte* Presentation at 14; Nokia July 3, 2003,
    *Ex Parte* Letter.

[^160]: *See* Samsung March 3, 2003, *Ex P*arte; 47 C.F.R. § 68.316.

[^161]: *See supra* para. 48.

[^162]: *See* SHHH Comments at 2 (number of individuals with hearing
    loss is increasing as a result of noise exposure and aging of
    society); Cochlear Americas May 16, 2003, *Ex Parte* at 1 (number of
    individuals who are candidates for cochlear implantation is growing
    by approximately 20 percent each year).

[^163]: *See* paras. 78-79, *infra* (discussing costs and benefits of
    our actions as required by HAC Act, 47 U.S.C. §610(e)).

[^164]: Under our requirements, digital wireless service providers are
    required to offer consumers at least two compliant phone models for
    each air interface they offer, but not necessarily two for every
    manufacturer they carry.

[^165]: *See supra* at para. 22 (explaining that acoustic coupling
    involves all sounds being received by the hearing aid's microphone,
    being converted to electrical signals and amplified as needed, and
    then being converted back into sound through the hearing aid's
    speaker).

[^166]: *Analog Sunset Order,* 17 FCC Rcd 18401, 18419. *See* para. 21,
    *supra* (describing process by which carriers may discontinue
    providing analog service).

[^167]: *See* Sprint PCS Comments at 14-16; Sony Ericsson March 13,
    2003, *Ex Parte* Presentation at 4; Nokia April 10, 2003, *Ex Parte*
    Presentation at 9; Samsung Telecommunications America March 21,
    2003, *Ex Parte*, Letter at 2.

[^168]: ANSI C63.19 at Section 7.2, Table 1 (p. 39).

[^169]: *See* SHHH September 12, 2002, *Ex Parte* Presentation,
    Preliminary Results of SHHH Mobile Phone Survey at 2 and Comments on
    Accessories from Survey Respondents at 1; Dana Mulvany Reply
    Comments at 1; Letter from Susan Matt to Washington State SHHH
    Members (visited June 17, 2003)
    \<http://www.wasa-shhh.org/telecommunications.htn\>.

[^170]: *See* Cingular/Siemens April 4, 2003, *Ex Parte* Presentation at
    6, 15; Motorola July 3, 2003, *Ex Parte* Letter at 2, 4; Sony
    Ericsson March 13, 2003, *Ex Parte* Presentation at 4, 7.

[^171]: *See* HIA March 26, 2003, *Ex Parte* at 2-3. Although HIA has
    expressed concern regarding what claims hearing aid manufacturers
    can make on product packaging with respect to compatibility with
    digital wireless phones, we note no FDA enforcement issues that
    would preclude such labeling. *See* Letter from Harold A. Pellerite,
    FDA Center for Devices and Radiological Health, to Marlene H.
    Dortch, WT Docket No. 01-309 (July 2, 2003).

[^172]: HIA February 20, 2003, *Ex Parte* at 2.

[^173]: HIA March 26, 2003, *Ex Parte* at 2*.*

[^174]: HIA indicates that its members represent approximately 90
    percent of the market for hearing aids in the U.S. *See* HIA June
    19, 2003, *Ex Parte* submission.

[^175]: 47 C.F.R. Part 68, Subpart E.

[^176]: 47 U.S.C. § 610(b)(1)(B) (emphasis added).

[^177]: *See* AG Bell Comments at 4; J. Harkins, Gallaudet University
    Rehab Engineering Research Center on Telecommunications Access
    "Wireless Phones: Making Them Work for You" (visited June 26, 2003)
    \<http://tap.gallaudet.edu/WirelessPhones.htm\>.

[^178]: *See* Consumer Action Network Comments at 2; TDI Comments at 4;
    AG Bell Reply Comments at 8; SHHH Sept. 24, 2002, *Ex Parte* Letter
    at 2; SHHH Sept. 12, 2002, *Ex Parte* ("SHHH Mobile Phone Survey for
    Users of Hearing Aids and Cochlear Implants").

[^179]: CTIA Comments at 18; TIA Comments at 22-23. *See* also CTIA June
    24, 2003, *Ex Parte* at 7 (advocating allowing manufacturers
    flexibility to determine the best way to provide inductive coupling
    capability); Cingular/Siemens June 5, 2003, *Ex Parte* at 11
    (stating that rules should support "equivalent facilitation" to
    encourage innovative solutions that take advantage of new
    technologies).

[^180]: Under the Americans with Disabilities Act (ADA), the exception
    for "equivalent facilitation" recognizes that future technologies
    may be developed, or existing technologies could be used in a
    particular way, that could provide the same functional access in
    ways not envisioned by the ADA standards. *See* Americans with
    Disabilities Act (ADA) Accessibility Guidelines, 36 C.F.R. Part
    1191, Appendix A at 2.2.

[^181]: *See Wireline HAC Order*, 11 FCC Rcd 8249, 8287.

[^182]: *See* Procedures for Measuring Electromagnetic Emissions From
    Digital Devices, Report and Order, GEN. Docket No. 89-44, 7 FCC Rcd.
    3128, 3130 (1992).

[^183]: CTIA June 24, 2003, *Ex* Parte Presentation at 4; Motorola May
    5, 2003, *Ex Parte* Letter at 2.

[^184]: To the extent hearing aid users have difficulty using wireless
    phones in the analog mode, such phones should provide telecoil
    coupling capability consistent with the U3T level prescribed by ANSI
    C63.19, and they should employ means to minimize other types of
    electromagnetic energy that could interfere with hearing aids (such
    as a programmable function that enables the user to control the
    backlight).

[^185]: The Commission defined Tier I wireless carriers in the Enhanced
    911 Phase II proceeding as the six CMRS carriers with national
    footprints (AT&T Wireless, Cingular Wireless, Nextel Communications,
    Sprint PCS, Verizon Wireless, and T-Mobile USA). *See* Revision of
    the Commission's Rules to Ensure Compatibility With Enhanced 911
    Emergency Calling Systems, 17 FCC Rcd 14841, 14843 (2002).

[^186]: *Analog Sunset Order,* 17 FCC Rcd 18401, 18443.

[^187]: Cingular/Siemens May 15, 2003, *Ex Parte* at 3.

[^188]: *See* para. 65, *supra.*

[^189]: *See* CTIA July 8, 2003, *Ex Parte.*

[^190]: *Id.*

[^191]: *See* Nokia July 1, 2003, *Ex Parte* at 4 (indicating that it is
    possible to include certain features within 6 months to a year).
    *See also* K.D. Schwartz, Illustration by C. Henry, \"Triumph of a
    new design paradigm,\" *Electronic Business*, Dec. 1, 2002 (visited
    July 8, 2003)
    \<http://www.e-insite.net/eb-mag/index.asp?layout=article&articleid=CA260850&&\>
    (referring to handset development cycles being shortened from 12 to
    18 months down to a six- to nine-month time frame).

[^192]: In addition, consumer groups support a two-year time frame for
    providing digital wireless handsets which comply with our rules.
    *See* RERC Feb. 28, 2002, *Ex Parte* Presentation; COR Comments at
    1; SHHH Comments at 9.

[^193]: *See* Motorola Jan. 31, 2003, *Ex Parte* Presentation at 14;
    Nokia July 1, 2003, *Ex Parte* Presentation at 8; Nokia July 3,
    2003, *Ex Parte* Letter.

[^194]: As noted above, Tier I wireless carriers must make available
    within two years at least two phone models that meet the U3
    requirements, or 25 percent of the total number of wireless phone
    models it offers, whichever is greater. *See supra* para. 65.

[^195]: *Analog Sunset Order,* 17 FCC Rcd 18401, 18443.

[^196]: *Section 255 Order*, 16 FCC Rcd 6417, 6420; 47 USC 151.

[^197]: *See* 47 C.F.R. § 2.1033.

[^198]: *See* discussion of reporting requirements at paras. 89-91,
    *infra*.

[^199]: *See* Nokia April 7, 2003, *Ex Parte* Presentation at 7;
    Motorola January 31, 2003, *Ex Parte* Presentation.

[^200]: *See* CTIA June 13, 2003, *Ex Parte* at 3; Motorola July 3,
    2003, *Ex Parte* at 4; Nokia July 1, 2003, *Ex Parte* Presentation
    at 11; Siemens June 20, 2003, *Ex Parte* at 1-2; Sony-Ericsson June
    18, 2003, *Ex Parte* at 1-3.

[^201]: *See* Motorola January 31, 2003, *Ex Parte* at 16; Nokia April
    10, 2003, *Ex Parte* Presentation at 7; Cingular/Siemens April 4,
    2003, *Ex Parte* at 4.

[^202]: *Id*.

[^203]: *See* Nokia April 10, 2003, *Ex Parte* Presentation at 10;
    Sony-Ericsson June 18, 2003, *Ex Parte* Letter at 2-3.

[^204]: *See* 47 U.S.C. § 610(e).

[^205]: *See* 47 U.S.C. § 610(e).

[^206]: *See* CTIA July 3, 2003, *Ex Parte* Letter at 1.

[^207]: *See* 47 U.S.C. § 610(e).

[^208]: *See* paras. 89-91, *infra* (detailing information that
    manufacturers and service providers will need to include in their
    reports).

[^209]: *See* 47 U.S.C. § 601(d).

[^210]: *Id*.

[^211]: 47 C.F.R. § 68.300.

[^212]: *See* Letter from Harold A. Pellerite, FDA Center for Devices
    and Radiological Health, to Marlene H. Dortch, WT Docket No. 01-309
    (July 2, 2003).

[^213]: *See* HIA July 2, 2003, *Ex Parte* submission.

[^214]: CTIA June 13, 2003, *Ex Parte* at 1-2. The web site will also
    include a message board where consumers can post experiences about
    wireless phones they have found work with their particular hearing
    aids. The web site is available at \<www.accesswireless.org\>.

[^215]: CTIA has also committed its member companies to work with
    carriers' sales forces, consumer groups, and professional
    organizations in an educational outreach effort. *Id*. at 2.

[^216]: *See* Appendix C, "Final Rules."

[^217]: *See* 47 C.F.R. § 68.400-423. Free online access to the
    Commission's rules is available at \<http://www.gpo.gov\>.

[^218]: *See* 47 C.F.R. § 68.414. Three states have adopted our hearing
    aid compatibility requirements: Illinois, Massachusetts, and
    Vermont.

[^219]: *See* Pub. L. No. 104-13

[^220]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601-612*.*, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996) (CWAA).

[^221]: *See* Section 68.4(a) of the Commission's Rules Governing
    Hearing Aid-Compatible Telephones, WT Docket No. 01-309, RM-8658,
    *Notice of Proposed Rulemaking*, 16 FCC Rcd 20558, 20578 (2001)
    (*Notice*). *See also* 47 U.S.C. § 610(b)(2)(c).

[^222]: *See* 5 U.S.C. § 604.

[^223]: Section 710 of the Communications Act of 1934, as amended, 47
    U.S.C. § 710(b)(1)(B).

[^224]: *See supra* at para. 72.

[^225]: See 5 U.S.C. § 603(b)(3).

[^226]: 5 U.S.C. § 601(6).

[^227]: ^?^ 5 U.S.C. § 601(3) (incorporating by reference the definition
    of "small business concern" in the Small Business Act, 15 U.S.C. §
    632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a
    small business applies "unless an agency, after consultation with
    the Office of Advocacy of the Small Business Administration and
    after opportunity for public comment , establishes one or more
    definitions of such term which are appropriate to the activities of
    the agency and publishes such definitions(s) in the Federal
    Register."

[^228]: 15 U.S.C. § 632.

[^229]: *Id*. § 601(4).

[^230]: 13 C.F.R. § 121.201, NAICS code 513322.

[^231]: *Telephone Trends Report*, Table 5.3.

[^232]: 13 C.F.R. § 121.201, NAICS code 334220.

[^233]: The number of "establishments" is a less helpful indicator of
    small business prevalence in this context than would be the number
    of "firms" or "companies," because the latter take into account the
    concept of common ownership or control. Any single physical location
    for an entity is an establishment, even though that location may be
    owned by a different establishment. Thus, the number given may
    reflect inflated numbers of businesses in this category, including
    the numbers of small businesses. In this category, the Census
    break-out data for firms or companies only gives the total number of
    such entities for 1997, which was 1,089.

[^234]: U.S. Census Bureau, 1997 Economic Census, Industry Series:
    Manufacturing, "Industry Statistics by Employment Size," Table 4,
    NAICS code 334220 (issued August 1999).

[^235]: *Id*. Table 5, "Industry Statistics by Industry and Primary
    Product Class Specialization: 1997."

[^236]: *See* 5 U.S.C. § 603(c)(1)-(c)(4).

[^237]: *See supra* at para. 69.

[^238]: *See supra* at para. 87.

[^239]: *See* 5 U.S.C. § 801(a)(1)(A)

[^240]: 5 U.S.C. § 553(d).

[^241]: H.R. Report No. 100-674, at 7 (1988).