**Before the**

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * | WT Docket No. 07-250         |
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second report and order

AND

Notice of proposed rulemaking

**Adopted: November 5, 2007 Released: November 7, 2007**

**Comment Date:** \[30 days after publication in the Federal Register\]

**Reply Comment Date:** \[45 days after publication in the Federal
Register\]

By the Commission:

Table of Contents

Heading Paragraph \#

I. INTRODUCTION 1

II\. BACKGROUND 7

III\. SECOND REPORT and ORDER 22

A. In-Store Testing 23

B. The *De Minimis* Exception 28

IV\. Notice of Proposed Rulemaking 32

A. Requirements and Deadlines for Hearing Aid-Compatible Handset
Deployment 36

1\. Deployment Benchmarks and Deadlines 37

2\. New Requirements for Handset Deployment 52

B. 2007 ANSI C63.19 Technical Standard 58

C. Reporting Obligations, Public Information, and Outreach 63

1\. Reporting 65

2\. Public Information and Outreach 72

D. Other Components of Joint Consensus Plan, and Related Proposals 78

E. Emerging Technologies 89

F. Networks using Open Platforms for Devices and Applications 95

V. STAY of February 18, 2008 requirements 98

VI\. PROCEDURAL MATTERS 100

VII.ORDERING CLAUSES 104

APPENDIX A -- Parties Filing Comments to 2005 Further Notice of Proposed
Rulemaking

APPENDIX B -- Proposed Rule in Joint Consensus Plan

APPENDIX C -- Initial Regulatory Flexibility Analysis

# INTRODUCTION

1.  Over the past four years, wireless service providers and
    manufacturers have made significant progress in achieving the
    Commission's goals to improve wireless services for the deaf and
    hard of hearing community through increased access to hearing
    aid-compatible handsets. Nonetheless, with ongoing developments in
    technology and in the market, ensuring the availability of hearing
    aid-compatible handsets to hard of hearing consumers, as well as
    information about such handsets, must remain a high priority for the
    Commission. In this item, we take steps to ensure that hearing aid
    users will continue to benefit from the convenience and features
    offered by the newest wireless communications systems being provided
    to American consumers, a goal the Commission established in 2003 in
    the *Hearing Aid Compatibility Order.*[^1] To the extent people who
    use hearing aids have difficulty finding a wireless mobile telephone
    that functions effectively with those devices because of
    interference or compatibility problems, a continued expansion in the
    number and availability of hearing aid-compatible wireless
    telephones is warranted. The actions we propose are designed to take
    account of changing market and technological conditions.

2.  In this Second Report and Order, we address the two specific
    potential rule changes on which the Commission sought comment in
    2005 in the notice of proposed rulemaking portion of the *Hearing
    Aid Compatibility Reconsideration Order and Further Notice*.[^2] On
    the first of these, we conclude that the current record does not
    support expanding the mandate for in-store demonstrations to
    independent retailers at this time. As regards the second, we
    decide, again based on the current record, not to narrow or
    otherwise change at this time the *de minimis* rule that exempts
    service providers and manufacturers with small product lines from
    the hearing aid compatibility regime. We do, however, seek renewed
    comment on these two issues in the Notice of Proposed Rulemaking
    ("Notice") that we are initiating today as part of the Commission's
    ongoing effort to evaluate possible rule changes in light of new as
    well as anticipated technological and market developments.

3.  In this Notice, we reexamine the Commission's existing hearing aid
    compatibility requirements to ensure that they will continue to be
    effective in an evolving marketplace of new technologies and
    services. We undertake this review in accordance with the
    Commission's commitment in the 2003 *Hearing Aid Compatibility
    Order* to initiate a new rulemaking proceeding to evaluate: "(1)
    whether to increase \[or\] decrease the 2008 requirement to provide
    50 percent of phone models that comply with a U3 rating; (2) whether
    to adopt \[hearing aid compatibility\] implementation benchmarks
    beyond 2008; and (3) whether to otherwise modify the \[hearing aid
    compatibility\] requirements."[^3] To assist in forming the basis
    for initiating this rulemaking, the Commission directed that staff
    deliver to the Commission a report that assesses the impact of the
    hearing aid compatibility rules in achieving greater compatibility
    between hearing aids and digital wireless phones and that examines
    the development of new technologies that could provide greater and
    more efficient accessibility of wireless telecommunications to
    hearing aid users.[^4] The Wireless Telecommunications Bureau (WTB),
    in WT Docket No. 06-203, recently released the *Staff Report*, which
    examines recent developments and includes several
    recommendations.[^5]

4.  In light of the current marketplace and in anticipation of future
    developments in wireless offerings, we seek comment in this Notice
    on various possible revisions to the Commission's hearing aid
    compatibility policies and requirements pertaining to wireless
    services. The proposals set forth herein draw upon recommendations
    proposed in the *Staff Report*. Several of these proposals, in turn,
    are based on an interconnected set of rule changes set forth in a
    consensus plan (Joint Consensus Plan) recently developed jointly by
    industry and representatives for the deaf and hard of hearing
    community. The specifics of the Joint Consensus Plan, along with a
    proposed model rule,[^6] are contained in the Supplemental Comments
    of the Alliance for Telecommunications Industry Solutions (ATIS),
    which was submitted as part of the record in WT Docket No.
    06-203.[^7] ATIS states that its working group developed a
    comprehensive plan reflecting the joint input of the wireless
    industry and consumers with hearing loss.[^8] The participants
    included many wireless service providers and equipment
    manufacturers, as well as Alexander Graham Bell Association for the
    Deaf and Hard of Hearing (AG Bell), Hearing Loss Association of
    America (HLAA), Gallaudet University Technology Access Program
    (TAP), and Rehabilitation Engineering Research Center on
    Telecommunications Access (RERC).[^9]

5.  As recommended in the *Staff Report*, we tentatively conclude
    substantially to adopt the provisions of the Joint Consensus Plan,
    and we seek comment on this tentative conclusion and several related
    matters.  In particular, we tentatively conclude to modify the
    handset deployment deadlines in Section 20.19 along the framework
    proposed in the Joint Consensus Plan, including (1) modifying the
    upcoming February 18, 2008 benchmark that requires that
    manufacturers and wireless service providers ensure that at least 50
    percent of their handset models over each air interface meet a U3/M3
    or better rating for radio frequency (RF) interference reduction
    and (2) imposing new benchmarks for deploying handsets that meet
    standards for providing inductive coupling capability.[^10] We also
    tentatively conclude in the Notice to impose new requirements on
    manufacturers and service providers such that they must include in
    their portfolios of hearing aid-compatible handsets a certain number
    of new models and models with different levels of functionality,
    including the capability to operate over different frequency bands,
    in order to ensure that people with hearing loss have access to new,
    advanced devices. In addition to these steps, we tentatively
    conclude to adopt an updated technical standard as proposed in the
    Joint Consensus Plan,[^11] and we seek comment on proposed new
    reporting, information, and outreach measures, as well as other
    interrelated proposals in the Joint Consensus Plan.  While we
    recognize that the Joint Consensus Plan proposals were developed
    through significant investigation and negotiation by the working
    group and its members,[^12] we also seek comment on possible
    alterations or additions to certain aspects of its proposals that
    may better implement our hearing aid compatibility goals.
    Finally, consistent with the recommendations in the *Staff Report*,
    we seek comment on how to better employ our hearing aid
    compatibility regulations in the context of emerging technologies
    and open platforms for devices and applications.

6.  Our intent is to issue a Report and Order addressing the issues
    raised in this Notice in the near future, in advance of the upcoming
    February 18, 2008 benchmark. As discussed above, we tentatively
    conclude that we will revise this benchmark and impose new ones in
    its place. In consideration of the need for certainty, and in order
    to provide appropriate notification to manufacturers and service
    providers as to the applicable hearing aid compatibility
    obligations, we will stay enforcement of the February 18, 2008
    benchmark for 60 days, until April 18, 2008.

# BACKGROUND

7.  In the *Hearing Aid Compatibility Order* adopted in 2003, the
    Commission took a number of actions to further the ability of
    persons with hearing disabilities to access digital wireless
    telecommunications.[^13] The Commission adopted these requirements
    under authority of the Hearing Aid Compatibility Act of 1988.[^14]
    These requirements were later modified slightly in the *Hearing Aid
    Compatibility Reconsideration Order and Further Notice* adopted in
    2005.[^15]

8.  The Commission's hearing aid compatibility rules apply generally to
    providers of digital commercial mobile radio services (CMRS) "to the
    extent that they 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," as well as to manufacturers of wireless phones used in the
    delivery of such services. [^16] Only Broadband Personal
    Communications Services (PCS), Cellular Radiotelephone Service
    (cellular), and Specialized Mobile Radio (SMR) Services in the 800
    MHz and 900 MHz bands currently are subject to specific hearing aid
    compatibility standards pursuant to Section 20.19 of the rules.[^17]
    Earlier this year, in the *700 MHz Service Report and Order*, we
    extended the hearing aid compatibility requirements to all providers
    of digital CMRS that meet the specified criteria, including
    providers of such service in the 700 MHz, Advanced Wireless
    Services, and Broadband Radio Service/Educational Broadband Service
    bands, and to manufacturers of handsets capable of providing such
    services, once applicable technical standards are established in the
    relevant bands.[^18] We also established a timetable for the
    development of the necessary technical standards for new services
    and frequency bands that have governing service rules in place and
    for incorporation of requirements based on those standards into our
    rules.[^19]

9.  *Current Hearing Aid Compatibility Requirements*. Under the
    Commission's existing hearing aid compatibility requirements, both
    manufacturers and digital wireless service providers must take steps
    to increase the number of hearing aid-compatible handset models
    available according to a phased-in deployment schedule.[^20] The
    Commission's hearing aid compatibility requirements address hearing
    aids that operate in either of two modes -- acoustic coupling or
    inductive coupling. Hearing aids operating in acoustic coupling mode
    receive and amplify all sounds surrounding the user, including
    desired sounds, such as a telephone's audio signal, as well as
    unwanted ambient noise.[^21] Hearing aids operating in inductive
    coupling mode avoid amplifying unwanted ambient noise by turning off
    the microphone and using a telecoil to receive only audio
    signal-based magnetic fields generated by telecoil-compatible
    telephones.[^22]

10. The rules codify the American National Standards Institute (ANSI)
    C63.19 performance levels as the applicable technical standard for
    hearing aid compatibility.[^23] The Commission determined that the
    standard presents a workable approach to measuring levels of
    interference that digital wireless handsets could cause to hearing
    aids, as well as for measuring the interference immunity of hearing
    aids.[^24] To ensure that the standard codified in the rules would
    remain viable, the Commission delegated to the Chief of WTB, in
    coordination with the Chief of the Office of Engineering and
    Technology (OET), the authority to approve future versions of the
    standard that do not raise major compliance issues. Pursuant to this
    authority, the Commission staff has permitted applicants for
    equipment certification to rely on either the 2001, 2005, or 2006
    version of the ANSI standard.[^25] Where major changes to the
    standard are made that could affect compliance, the Commission
    stated it would initiate an appropriate rulemaking proceeding to
    consider adoption of updated versions.[^26] The Commission also
    encouraged ANSI to work with the relevant stakeholders to review the
    standard periodically to determine whether improvements to the
    standard are warranted.[^27]

11. With respect to acoustic coupling operation, the Commission
    generally requires each covered manufacturer and service provider to
    offer specific numbers of handset models per air interface in its
    product line (*i.e*., CDMA, TDMA, GSM, and iDEN)[^28] that meet, at
    a minimum, an M3 rating (formerly denominated a U3 rating) for
    reduction of RF interference between handsets and hearing aids in
    acoustic coupling mode, as set forth in the ANSI C63.19 technical
    standard.[^29] The Commission also established separate requirements
    to offer specific numbers of handset models per air interface that
    meet at least a T3 rating (formerly denominated a U3T rating) to
    enable inductive coupling with hearing aids operating in telecoil
    mode.[^30] If a handset manufacturer or service provider offers a
    multi-band handset in order to comply with these requirements, the
    handset must be hearing aid-compatible in each frequency band.[^31]
    The Commission further established that, before a handset can be
    offered in satisfaction of these obligations, the handset
    manufacturer must first certify that it is compliant with the
    compatibility requirements through the Commission's equipment
    authorization process as set forth in Section 2.1033(d) of the
    Commission's rules.[^32]

12. The hearing aid compatibility rules set forth a series of specific,
    phased-in benchmarks for manufacturers and service providers to
    deploy handsets that meet these compatibility thresholds between
    2005 and 2008.[^33] The rules required that:

-   by September 16, 2005, each digital wireless handset manufacturer
    make available to wireless service providers, and each such provider
    make available to consumers, at least two handset models for each
    air interface it offers which provide the reduced RF emissions (M3
    rating) necessary to enable acoustic coupling without interference;

-   by September 16, 2005, each Tier I (*i.e.*, nationwide) wireless
    carrier[^34] providing digital wireless services make available to
    consumers at least four handset models for each air interface it
    offers that provides reduced RF emissions (M3 rating), or 25 percent
    of the total number of handset models it offers, whichever is
    greater;

-   by September 16, 2006, each Tier I wireless carrier providing
    digital wireless services make available to consumers at least five
    handset models for each air interface it offers that provides
    reduced RF emissions (M3 rating), or 25 percent of the total number
    of handset models it offers, whichever is greater; and

-   by September 16, 2006, each digital wireless handset manufacturer
    make available to wireless service providers, and each provider of
    public mobile radio services make available to consumers, at least
    two handset models for each air interface it offers that provide
    telecoil (inductive) coupling capability (T3 rating).

13. The requirements to offer specific numbers of compatible handset
    models for "each air interface" mean that the manufacturer or
    service provider must offer that number of compatible models capable
    of operating over that air interface. Thus, for example, a
    manufacturer that produces handsets capable of operating over the
    GSM air interface, regardless of whether some or all of those models
    also operate over other air interfaces, must produce at least two
    such models (either single-mode or multi-mode) that meet an M3 or
    higher rating.

14. The current handset deployment benchmarks also currently require
    that by February 18, 2008, at least 50 percent of all digital
    wireless handset models offered by manufacturers or digital wireless
    service providers per air interface offered must meet an M3
    rating.[^35] Finally, the rules contain a de minimis exception to
    these benchmarks for certain digital wireless handset manufacturers
    and wireless service providers.[^36]

15. In addition, the 2003 *Hearing Aid Compatibility Order* imposed
    certain implementation requirements not codified in the rules. Those
    requirements include an obligation on the part of manufacturers and
    digital wireless service providers to report every six months on
    efforts toward compliance with the hearing aid compatibility
    requirements for the first three years of implementation and then
    annually thereafter through the fifth year of implementation.[^37]
    Other obligations imposed concerned product labeling and live,
    in-store consumer testing of digital wireless handsets.[^38]

16. Upon first establishing hearing aid compatibility requirements, the
    Commission indicated that it would monitor compliance and consider
    other opportunities to further the ability of persons with hearing
    disabilities to access digital wireless telecommunications. In the
    2003 *Hearing Aid Compatibility Order*, the Commission set forth
    three aspects of its rules that it planned to consider prior to
    2008: "(1) whether to increase \[or\] decrease the 2008 requirement
    to provide 50 percent of phone models that comply with a U3
    rating; (2) whether to adopt \[hearing aid compatibility\]
    implementation benchmarks beyond 2008; and (3) whether to otherwise
    modify the \[hearing aid compatibility\] requirements."[^39] The
    Commission also stated that prior to such a proceeding, "FCC staff
    will deliver to the Commission a report" on: (1) "the impact of our
    rules in achieving greater compatibility between hearing aids and
    digital wireless phones"; (2) "the development of new technologies
    that could provide greater or more efficient accessibility of
    wireless telecommunications to hearing aid users"; and (3) "the
    impact of this Order's compatibility requirements on cochlear
    implant and middle ear implant users and their ability to use
    digital wireless phones."[^40] Moreover, in reconsidering certain
    aspects of Section 20.19 in the 2005 *Hearing Aid Compatibility
    Reconsideration Order and Further Notice,*[^41] the Commission
    explained that it collects data on hearing aid compatibility to
    comply with Congress' requirement that the Commission periodically
    review and scrutinize its hearing aid compatibility
    regulations.[^42] The Commission also reiterated its commitment to
    revisit the February 18, 2008, 50 percent handset deployment
    benchmark.[^43]

17. *Hearing Aid Compatibility Further Notice.* In the notice portion of
    the 2005 *Hearing Aid Compatibility Reconsideration Order and
    Further Notice*, the Commission sought comment on two outstanding
    issues: (1) whether to extend the live, in-store consumer testing
    requirement to retail outlets that are not directly owned or
    operated by wireless carriers or service providers; and (2) whether
    to narrow the *de minimis* exception, for instance by exempting from
    the hearing aid compatibility requirements only wireless carriers,
    service providers, and handset manufacturers that offer one digital
    wireless handset model per air interface.[^44] Four parties filed
    comments in the proceeding, and three filed replies.[^45]

18. Five commenters argue that the Commission should not extend the
    testing requirement to independent retailers, arguing that the
    Commission lacks legal authority to do so and that, even if it had
    such authority, the lack of a record of problems experienced by
    purchasers, combined with the practical difficulties of
    implementation, would make a decision to do so unadvisable.[^46] One
    commenter -- a hearing aid manufacturers' association -- favors
    extending this requirement, asserting the Commission has the
    necessary jurisdiction and that doing so would create a "level
    playing field" for all handset vendors.[^47] Only two commenters
    address the *de minimis* issue, and both oppose any changes to the
    *de minimis* rule.[^48]

19. *Staff Report.* As discussed above, in the 2003 *Hearing Aid
    Compatibility Order* the Commission directed that Commission staff
    deliver to the Commission a report that assesses the impact of the
    hearing aid compatibility rules in achieving greater compatibility
    between hearing aids and digital wireless phones and that examines
    the development of new technologies that could provide greater and
    more efficient accessibility of wireless telecommunications to
    hearing aid users.[^49] On November 8, 2006, the Wireless
    Telecommunications Bureau (WTB) sought comment on possible topics
    for evaluation in its report to the Commission.[^50] Twenty comments
    and thirteen replies were filed.[^51]

20. Recently released, the *Staff Report* reviews the status of
    implementation of the Commission's hearing aid compatibility
    requirements and offers specific recommendations to assist the
    Commission in making additional changes to those requirements so
    that they may remain effective in the evolving marketplace of new
    technologies and services. Among other things, Commission staff
    recommend that we seek input on how to promote more complete
    compatibility between wireless communications devices and hearing
    aids by: considering how to improve in-store testing and the
    availability of public information regarding hearing aid-compatible
    handsets; considering how to improve the quality and usefulness of
    the information reported in the wireless industry's compliance
    reports; continuing to monitor enhancements to existing wireless
    technologies as well as hearing aid labeling and related issues; and
    seeking comment on emerging issues, including issues arising out of
    the development of wireless Voice over Internet Protocol (VoIP)
    applications[^52] and "open platform" networks.[^53]

21. In addition, the *Staff Report* specifically recommends seeking
    comment on the several proposed rule changes set forth in the Joint
    Consensus Plan filed by ATIS on June 25, 2007, in WT Docket No.
    06-203.[^54] The Joint Consensus Plan is made up of several proposed
    interrelated rule changes to Section 20.19. ATIS urges the
    Commission to act on these proposals "expeditiously so that the
    industry can meet the obligations by February 18, 2008."[^55] First,
    the Joint Consensus Plan proposes several changes to the deadlines
    and other provisions requiring service providers and manufacturers
    to make available certain types of hearing aid-compatible phones,
    including: (1) "provid\[ing\] Tier I carriers with an alternative to
    the 50 percent rule for M-rated phones"; (2) "increas\[ing\] the
    number of T3-or-better phones that Tier I carriers must make
    available"; (3) "requir\[ing\] manufacturers to offer thirty
    three (33) percent of wireless phones at the M3-or-better level";
    and (4) requiring "each manufacturer not subject to the *de minimis*
    exception . . . \[to\] produce at least two or more T3-or-better
    handsets."[^56] These changes include new rules requiring
    manufacturers each year to include a certain number of new products
    among their hearing aid-compatible models, and requiring Tier I
    carriers to provide hearing aid-compatible models from multiple
    tiers of functionality.[^57] Second, the Joint Consensus Plan
    proposes a transition to phase-in the 2007 version of the ANSI
    C63.19 standard for hearing aid compatibility testing.[^58] Third,
    the Joint Consensus Plan proposes that service providers and
    manufacturers report regularly on the availability of products under
    updated criteria for information submissions.[^59] Finally, to
    further accessibility to hearing aid-compatible phones, the Joint
    Consensus Plan proposes other steps that the Commission should take
    to adequately address hearing aid compatibility of wireless
    handsets.[^60] Most of these proposals consider appropriate
    modifications only to rules for manufacturers and Tier I carriers,
    and do not address the Commission's future hearing aid compatibility
    requirements for Tier II and Tier III carriers, or other service
    providers.[^61]

# SECOND REPORT and ORDER

22. In the Second Report and Order, we discuss the two specific issues
    on which the Commission sought comment in the *Hearing Aid
    Compatibility Further Notice*: (1) whether to extend to independent
    retailers the requirement to make hearing aid-compatible handset
    models offered for sale available for consumer testing in the store;
    and (2) whether to narrow or otherwise change the *de minimis* rule
    that exempts service providers and manufacturers with small product
    lines from hearing aid compatibility requirements. As discussed
    below, we determine that the record does not support any revisions
    on these issues at this time. We do, however, provide the
    opportunity for additional comment on these issues in response to
    the Notice we are initiating.

## In-Store Testing

23. [Background]{.underline}. Section 20.19(c) and (d) of the
    Commission's rules requires that wireless service providers make
    their hearing aid-compatible handset models available for consumer
    testing in each retail store that they own or operate.[^62] In the
    *Hearing Aid Compatibility Reconsideration Order and Further
    Notice*, the Commission clarified that this requirement applies to
    retail outlets owned or operated by wireless carriers or service
    providers, but not to independent retailers.[^63] The Commission
    sought further comment on whether extending that requirement to
    independent retailers would be within the Commission's authority,
    and if so whether it should be done.[^64] The Commission was
    specifically concerned that limiting the testing requirement to
    carrier-owned or -operated retail outlets might interfere with full
    implementation of Congress\' requirement that the Commission
    "establish such regulations as are necessary to ensure reasonable
    access to telephone service by persons with impaired hearing."[^65]
    The Commission also sought comment on the impact that this proposal
    would have on small business retailers and independent retailers,
    whether extending this requirement would create a more level playing
    field for different types of retailers, and the extent to which
    extending this requirement might create an unacceptable burden for
    independent retailers, small business retailers, or both.[^66]

24. At the same time, the Commission sought comment on whether it had
    legal authority to impose such a requirement on independent
    retailers, and if so, the scope of that authority.[^67] In this
    regard, the Commission specifically sought comment on the degree to
    which the relationship between independent retailers, whether large
    or small, and wireless carriers and service providers could have an
    impact on enforcement of a live, in-store consumer testing
    requirement.[^68] This included whether, under Section 217 of the
    Communications Act,[^69] the Hearing Aid Compatibility Act,[^70] or
    general principles of agency law, the Commission could require those
    service providers, in their contracts with retailers selling their
    wireless services, to offer live, in-store consumer testing.[^71]
    Six parties filed comments or reply comments addressing this issue.

25. Cingular, T-Mobile, CompUSA, CERC, and Radio Shack strongly oppose
    extension of the in-store testing requirement both on practical
    grounds and on the grounds that the Commission lacks jurisdiction to
    impose such a requirement. These parties argue that nothing in the
    Hearing Aid Compatibility Act or any other statute grants such
    authority[^72] and that the Commission's ancillary jurisdiction to
    regulate in areas not expressly covered by statute is limited.[^73]
    Regardless of whether the Commission has the authority to act, the
    same commenters advise against it on policy grounds, noting that the
    logistics of implementation would be daunting, requiring viable
    connections to all networks in all stores, and stating that security
    and theft of handsets would be a problem.[^74] Moreover, they state
    that sales staff are not trained for such practices,[^75] the cost
    of manpower and demonstration phones would be high,[^76] and
    retailers already honor a 30-day return policy for mobile phones,
    which allows for extensive real-world environment testing.[^77]

26. The Hearing Industries Association (HIA), a hearing aid
    manufacturers' association, supports extending the in-store
    demonstration requirement. HIA argues that "Congress could not have
    been clearer in its intent"[^78] to authorize regulation to ensure
    access to telephone service by persons with impaired hearing, citing
    Section 710(a) of the Communications Act, which states that "\[t\]he
    Commission shall establish such regulations as are necessary to
    ensure reasonable access to telephone service by persons with
    impaired hearing."[^79] HIA cites the "surely substantial"[^80]
    numbers of handsets sold by retailers such as Radio Shack, Best Buy,
    and Circuit City, and it argues that the ability to test phones
    before activating a service contract is crucial.[^81]

27. [Discussion]{.underline}. We note that no advocates for the hard of
    hearing community chose to file comments on this proposed
    rulemaking. Given this, and considering the concerns about the
    possible burden on retailers, we find that the record at this time
    does not support a change to the in-store demonstration requirement.
    However, in the Notice below, we seek further comment on the issue
    in light of changes to the marketplace and regulatory environment
    since 2005.

## The *De Minimis* Exception

28. [Background]{.underline}. When first adopting hearing aid
    compatibility requirements involving wireless services in 2003, the
    Commission recognized that such requirements could have a
    disproportionate impact on small manufacturers or those that sell
    only a small number of digital wireless handset models in the United
    States, as well as on service providers that offer only a small
    number of digital wireless handset models.[^82] To resolve this
    concern, the Commission adopted a *de minimis* exception, which
    relieves wireless service providers and handset manufacturers that
    offer two or fewer digital wireless handset models in the United
    States from the hearing aid compatibility compliance obligations set
    forth in the *Hearing Aid Compatibility Order*.[^83]

29. In the 2005 *Hearing Aid Compatibility Reconsideration Order and
    Further Notice*, the Commission clarified that the *de minimis*
    exception applies on a per air interface basis, rather than across a
    manufacturer's or service provider's entire product line.[^84] The
    Commission also sought comment on whether to narrow the *de minimis*
    exception so as to exempt from the hearing aid compatibility
    requirements only those wireless service providers and handset
    manufacturers that offer one digital wireless handset model per air
    interface, or whether the *de minimis* exception should be narrowed
    in some other way.[^85] Specifically, the Commission sought comment:
    on whether the current rule reduces the access of consumers with
    hearing aids and cochlear implants to wireless devices; on whether
    any particular modification that would narrow the *de minimis*
    exception would increase costs to all consumers, including those
    with and without hearing disabilities, or discourage market entry by
    manufacturers; and on the number of wireless service providers and
    manufacturers that would be affected by any such change in the rule,
    including the impact on small businesses.[^86] Only two parties
    commented.

30. Cingular opposes any change to the *de minimis* rule, noting that
    the Commission did not cite any examples of problems with the
    existing exception and Cingular knows of none.[^87] Research in
    Motion also opposes such a change, noting that a one-phone *de
    minimis* exception would be almost meaningless and would require
    small and specialty manufacturers to make virtually all of their
    phones compliant.[^88]

31. [Discussion]{.underline}. We find that the record does not support
    any change to the *de minimis* exception at this time. No commenter
    has challenged the current scope of this exception or otherwise
    raised concerns about the Commission's justification for such an
    exception. We note that, in the Notice below, we seek comment on the
    Joint Consensus Plan, including its proposal to retain the existing
    *de minimis* exception.[^89] In that context, wireless service
    providers and affected consumers will have another opportunity to
    raise any arguments for narrowing or otherwise modifying the
    exception that are not in the current record. Pending our review of
    any such comments, we take no action at this time.

# Notice of Proposed Rulemaking

32. In the Notice that we are initiating, we seek comment on
    recommendations in the *Staff Report* and on the various proposals
    set forth in the Joint Consensus Plan. We make a number of tentative
    conclusions based on the broad consensus established by those
    participating in the development of the Joint Consensus Plan.

33. Specifically, as recommended in the *Staff Report* and the Joint
    Consensus Plan, we tentatively conclude to adopt new M3- and
    T3-rated handset deployment benchmarks through 2011, among other
    things modifying the upcoming February 18, 2008 requirement to
    provide 50 percent of phone models that comply with an M3 rating. We
    also tentatively conclude to take the following steps: (1) implement
    a "product refresh" rule for manufacturers and a new requirement
    that service providers include in their portfolios of hearing
    aid-compatible handsets a certain number of models with different
    levels of functionality, including the capability to operate over
    different frequency bands; (2) adopt, after a suitable phase-in
    period, the use of a single version of the ANSI C63.19 standard,
    ANSI C63.19-2007; (3) adopt new content and timelines for hearing
    aid compatibility reporting requirements; (4) retain the current *de
    minimis* exception for manufacturers and carriers with small product
    lines and codify that it applies on a per-air interface basis; (5)
    codify that multi-mode and multi-band handsets must be compliant
    over each air interface and frequency band over which they operate
    in order to be counted as compliant; (6) clarify that multi-band and
    multi-mode phones cannot be counted as compatible in any band or
    mode if they operate over air interfaces or frequency bands for
    which technical standards have not been established; (7) extend the
    hearing aid compatibility rules to cover services offered over any
    frequency in the 800-950 MHz and 1.6-2.5 GHz bands that employ air
    interfaces for which technical standards have been established as
    part of ANSI C63.19, as approved by the Commission; and (8) commence
    a further review of all issues related to hearing aid compatibility
    in 2010. In the context of several of these tentative conclusions,
    we also request comment regarding the appropriate deployment regime
    for Tier II/III carriers and other service providers that are not
    Tier I carriers, which generally were not included within the Joint
    Consensus Plan's framework. We also seek comment on the possibility
    of staggered handset deployment deadlines, additional
    reporting/outreach obligations, and other measures not addressed by
    the Joint Consensus Plan. Finally, following upon the
    recommendations in the *Staff Report*, the Notice invites comments
    on new hearing aid compatibility issues implicated by nascent
    technologies, including VoIP and wireless data connections, and
    regulatory environments, including "open platform" networks.

34. We request that manufacturers and service providers be as specific
    as possible regarding the impact of these proposals on their
    operations, and that any alternative proposals be supported by
    evidence as to their feasibility and effectiveness. Affected
    consumers, including those with hearing difficulties, should support
    any new proposals with explanations of not only the benefits but
    also the costs to service providers, manufacturers, or other
    consumers, and why such costs are outweighed by the benefits. The
    Joint Consensus Plan contains many interrelated provisions, and we
    note the emphasis that its proponents place on adopting the plan as
    a whole in order to maintain the balance achieved during
    negotiations by its various member participants.[^90]

35. Discussion of these proposals is divided into six parts: (1) new
    requirements and deadlines for hearing aid-compatible handsets; (2)
    adoption of the 2007 version of the ANSI technical standard; (3)
    reporting, information submissions, and outreach efforts; (4)
    miscellaneous aspects of the Joint Consensus Plan; (5) emerging
    wireless technologies using VoIP; and (6) issues regarding open
    platforms for devices and applications.

## Requirements and Deadlines for Hearing Aid-Compatible Handset Deployment

36. We seek comment on a set of new requirements for manufacturers and
    certain carriers as they deploy hearing aid-compatible handsets in
    the years to come. The first proposal in the Joint Consensus Plan is
    to modify several deployment deadlines as set forth in Section 20.19
    of the Commission's rules, including the requirement that
    manufacturers and wireless service providers ensure that, by
    February 18, 2008, at least 50 percent of their handset models over
    each air interface offered meet a U3/M3 or better rating for RF
    interference reduction,[^91] as well as the requirements for
    deployment of handsets that meet a T3 rating for inductive coupling
    capability. In this context, the plan also proposes new "product
    refresh" and "multiple tier" requirements in order to ensure people
    with hearing loss have access to new, advanced devices.

### Deployment Benchmarks and Deadlines

37. In this section, we seek comment on tentative conclusions to adopt
    new hearing aid-compatible handset deployment benchmarks for
    manufacturers and service providers between 2008 and 2011,
    consistent with those recommended in the *Staff Report* and proposed
    as part of the Joint Consensus Plan. These include proposals (1) to
    modify requirements currently in effect for February 18, 2008, and
    establish future requirements to provide handsets that incorporate
    reduced RF interference in recognition of technology and market
    obstacles currently faced by manufacturers and service providers,
    and (2) to provide more options to consumers with severe hearing
    loss by imposing additional requirements on both service providers
    and manufacturers to make handsets available that are compatible
    with hearing aids operating in the telecoil mode. In addition to
    seeking comment on the recommendations and proposals in the Joint
    Consensus Plan, we ask commenters to address specifically questions
    raised in the *Staff Report*, including those concerning appropriate
    benchmarks and deadlines to apply to service providers other than
    Tier I carriers, and those concerning whether staggering of
    deadlines between manufacturers and service providers is
    appropriate.

38. *M3- and T3-Rated Benchmarks/Deadlines*. Section 20.19(c) and (d) of
    the Commission's rules contains the current deadlines for deployment
    of public mobile radio service handset models that meet both the M3
    (or higher) and T3 (or higher) ratings for compatibility with
    hearing aids.

39. The following table summarizes the deadlines applicable to both
    manufacturers and service providers to deploy handsets that meet an
    M3 (or higher) rating for reduced radio frequency interference to
    enable acoustic coupling between the handset and hearing aids:[^92]

    [Manufacturer]{.underline}:

-   *By September 16, 2005* -- provide at least two hearing
    aid-compatible models for each air interface offered.

-   *By February 18, 2008* -- ensure 50% of models offered are hearing
    aid-compatible for each air interface offered.

    [Service Provider]{.underline}:

-   *By September 16, 2005 --*

    -   Tier I Carriers: provide at least four digital hearing
        aid-compatible models per air interface or 25% of digital
        wireless models offered nationwide for each air interface
        offered.

    -   Other Service Providers: provide at least two hearing
        aid-compatible models for each air interface offered.

-   *By September 16, 2006* --

    -   Tier I Carriers: provide at least five hearing aid-compatible
        digital models per air interface or 25% of digital wireless
        models offered nationwide for each air interface offered.

-   *By February 18, 2008* --

    -   All Service Providers: ensure 50% of models offered are hearing
        aid-compatible for each air interface offered (based on digital
        wireless models offered nationwide).

40. The following table summarizes the rule's deployment deadlines by
    which both manufacturers and service providers must offer digital
    wireless T3-rated (or higher) handset models that enable inductive
    coupling between the handset and hearing aids:[^93]

    [Manufacturer]{.underline}:

-   *By September 18, 2006* -- provide at least two hearing
    aid-compatible models for each air interface offered.

    [Service Provider]{.underline}:

-   *By September 18, 2006* -- provide at least two hearing
    aid-compatible models for each air interface offered.

41. We seek comment on modifying these provisions consistent with the
    proposals in the Joint Consensus Plan, both by adopting reduced and
    alternative benchmarks for deploying handsets compatible with
    hearing aids operating in acoustic coupling (also known as
    microphone) mode and by increasing future benchmarks for
    compatibility with hearing aids operating in inductive coupling
    (also known as telecoil) mode.

42. With respect to acoustic coupling compatibility, in recognition of
    marketplace and technical realities we seek comment on a tentative
    conclusion to adopt a lower threshold for equipment manufacturers to
    deploy M3-rated (or higher) handsets. In place of the current
    requirement that 50 percent of handset models per air interface meet
    hearing aid compatibility standards by February 18, 2008, we propose
    that manufacturers be obligated, for each air interface for which
    they offer handsets, to meet the requirement, as proposed in the
    Joint Consensus Plan, of "33% of manufacturers' non-*de minimis*
    portfolio models offered to service providers in the United
    States."[^94] Thus, for example, if a manufacturer produces a total
    of 12 models capable of operating over the GSM air interface
    (regardless of whether these are single-mode or multi-mode models),
    at least four of those models would have to meet an M3 or higher
    rating.[^95]

43. We note that technological issues make it difficult to produce a
    wide variety of Global System for Mobile Communications (GSM)
    handsets that both meet the M3 standard for reduced RF interference
    for acoustic coupling and include certain popular features, and we
    seek to promulgate rules that are as technology-impartial as
    possible.[^96] We tentatively conclude that, in context with the
    other proposals in the Joint Consensus Plan, these reduced
    thresholds strike an appropriate balance between maintaining
    technological neutrality and ensuring availability of hearing
    aid-compatible handsets to affected consumers. Do differences, in
    terms of the nature of the signals emitted and burdens of the
    formulae used to calculate compliance ratings under the ANSI
    technical standard, support our tentative conclusion and justify
    this lower benchmark? Under the rule change proposed here, would
    either the GSM or Code Division Multiple Access (CDMA) air interface
    have an advantage over the other in terms of rule compliance? Would
    any impacts to hard of hearing consumers due to the production of
    fewer numbers of compatible handset models be offset by the
    requirement that manufacturers regularly include new compatible
    models in their product lines, as discussed below?

44. For Tier I carriers, we seek comment on a tentative conclusion to
    adopt an alternative schedule to the 50 percent M3-rated (or higher)
    February 18, 2008 deployment deadline. These carriers would have the
    choice of complying with either the current rule or a new schedule
    based on total numbers of compliant handset models.[^97] This
    schedule would create obligations for service providers to provide
    an increasing number of handset models per air interface over which
    they offer service by future dates as follows:

    [February 18, 2008]{.underline}: eight M3-rated (or higher) handset
    models.

    [February 18, 2009]{.underline}: nine M3-rated (or higher) handset
    models.

    [February 18, 2010]{.underline}: ten M3-rated (or higher) handset
    models.[^98]

    Such a schedule could provide needed flexibility for Tier I carriers
    to deploy new and additional models over time, particularly in the
    context of reduced production benchmarks for manufacturers. We also
    note that, while this proposal may result in fewer numbers of
    compatible handset models being offered by certain service providers
    to hard of hearing consumers, these consumers would, under another
    proposal discussed below, be assured a large number of compliant
    handsets at multiple levels of functionality, or tiers.[^99] We seek
    comment on our tentative conclusion to modify the rule as proposed.

45. Along with these proposals to modify the deployment requirements
    regarding reduced RF interference for acoustic coupling
    compatibility, we also seek comment on a tentative conclusion to
    increase the benchmarks for manufacturers' and Tier I carriers'
    deployment of handsets meeting a T3 (or higher) rating for inductive
    coupling capability. Because customers' options for handsets that
    enable inductive coupling with telecoils have been more limited than
    for acoustic coupling compatibility,[^100] additional requirements
    of this nature could benefit some of the most disadvantaged wireless
    users in the deaf and hard of hearing community, who are more likely
    to rely on telecoil-equipped hearing aids.[^101]

46. As discussed above, under current rules manufacturers are not
    required to provide additional T3-rated handsets once they have met
    the September 18, 2006 deadline for offering two compliant handset
    models per air interface. Under our proposed rule changes, we would
    now require manufacturers to meet the greater of two measures for
    each air interface for which they offer handsets in 2009 through
    2011, as follows:

```{=html}
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```
(1) a minimum of two T3-rated (or higher) models for each air interface
    for which the manufacturer offers four or more handset models to
    service providers; or

(2) at least 20% / 25% / 33% of models that the manufacturer offers over
    each air interface rated T3 (or higher) by February 18, 2009 / 2010
    / 2011 respectively.

    As proposed, these percentage calculations would be rounded down to
    the nearest whole number in determining the minimum number of
    handsets to be produced. In addition, we note that each non-*de
    minimis* manufacturer would still be required to produce at least
    two or more T3-rated (or higher) handsets per air interface for
    which it offers handsets.[^102]

```{=html}
<!-- -->
```
47. Similarly, service providers are currently not required to deploy
    additional T3-rated (or higher) handset models once they have met
    the September 18, 2006 deadline for offering two compliant handset
    models per air interface. Under our proposed rule changes, we would
    now require Tier I carriers to meet the lesser of the following
    requirements for each air interface over which they offer service:

    \(1\) [February 18, 2008]{.underline}: 33% of digital wireless
    handset models are T3-rated (or higher); or

    \(2\) a schedule as follows:

    [February 18, 2008]{.underline}: three T3-rated (or higher)
    handsets.

    [February 18, 2009]{.underline}: five T3-rated (or higher) handsets.

    [February 18, 2010]{.underline}: seven T3-rated (or higher)
    handsets.

    [February 18, 2011]{.underline}: ten T3-rated (or higher) handsets.

48. We tentatively conclude that these increased requirements for
    deployment of T3-rated (or higher) handsets are necessary and
    appropriate for both manufacturers and Tier I carriers. These
    additional benchmarks would provide valuable benefits to affected
    consumers with profound hearing loss. Because customers' options for
    handsets that enable inductive coupling with telecoils have been
    more limited than for those that reduce RF interference with
    acoustic coupling operation,[^103] and advocacy groups representing
    people with hearing loss have indicated that increased numbers of
    inductive coupling-capable handsets would assist a greater number of
    people with hearing loss, especially those with profound hearing
    loss,[^104] we tentatively conclude that manufacturers should be
    striving to produce, and service providers should be striving to
    deploy, more handset models of this type. We understand the Joint
    Consensus Plan to reflect the consensus of the submitting parties
    that the targets set forth therein are technologically and
    economically feasible. Moreover, we note that the alternative
    benchmarks for Tier I carriers give those who offer a large number
    of handset models over a given air interface the flexibility to
    satisfy their obligations by offering a substantial number of
    compatible handset models. We seek comment on our tentative
    conclusion.

49. We also seek comment on any additional deadlines or deployment
    milestones that may be appropriate to adopt at this time. Although
    we seek comment below on conducting another rulemaking in 2010, as
    recommended in the *Staff Report*,[^105] we will also consider any
    appropriate deployment benchmarks that commenters might support. For
    example, should we consider adopting any future M4 or T4 handset
    compliance requirements? What technological and market constraints
    should be considered when evaluating any additional future hearing
    aid compatibility deployments?

50. *Service Providers Other than Tier I Carriers*. As explained in the
    *Staff Report,* the Joint Consensus Plan is silent with respect to
    service providers that are not Tier I carriers.[^106] Accordingly,
    we seek comment generally on the appropriate deployment regime for
    these wireless service providers. As a general matter, in order to
    make the benefits of compatible handsets available to all consumers
    who need them, all service providers should be expected to meet the
    same benchmarks unless they cannot reasonably do so. At the same
    time, we note that in the past numerous Tier II and Tier III
    carriers have requested, and many have been granted, extension of
    compatible handset deployment deadlines because they were unable
    timely to obtain compliant handsets in sufficient quantities from
    manufacturers.[^107] We therefore ask commenters to address whether
    there is anything inherent in the characteristics of Tier II and
    Tier III carriers, resellers, and mobile virtual network operators
    (MVNOs), or other categories of smaller service providers, that
    would prevent them from meeting either the RF interference reduction
    or inductive coupling-capable handset numbers and percentages set
    out above for Tier I carriers. Commenters should discuss with
    specificity any alternative requirements or schedules that they
    propose for these types of service providers, and the reasons for
    those alternatives.

51. *Staggered Deadlines for Deployment*. We also specifically seek
    comment on whether, with respect to offering compliant handsets, we
    should require different, staggered deployment deadlines for
    manufacturers and service providers. Should manufacturers be
    required to offer compliant handsets at some time prior to all
    service providers, or to some subset of smaller providers? We note
    that many Tier II and Tier III carriers have requested waivers of
    hearing aid compatibility deadlines, complaining among other things
    that manufacturers have not made compliant handsets available
    sufficiently in advance of the deadline so that these service
    providers could, in turn, make them available to consumers.[^108]
    Instituting a short interval between the manufacturers' and some or
    all service providers' deadlines might be appropriate to address the
    circumstances that have engendered these waiver requests. Because of
    market realities, Tier II and Tier III carriers may have more
    difficulty than Tier I carriers in obtaining handsets. We note that
    the Joint Consensus Plan does not request any staggered deadlines
    for Tier I carriers. We ask commenters to address specifically
    whether staggering of deadlines is appropriate in the context of our
    proposed future hearing aid compatibility requirements, and if so,
    for how long and for what subset of service providers.

### New Requirements for Handset Deployment

52. In the 2003 *Hearing Aid Compatibility Order*, the Commission urged
    service providers and manufacturers to make hearing aid-compatible
    phones available in lower-priced models as well as in models that
    include higher-end features:

    \[I\]n meeting the two- and three-year requirements \[in 2005 and
    2006\], 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 \[in 2008\], 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-hearing aid-compatible 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.[^109]

53. We now propose, in accord with the *Staff Report* and the Joint
    Consensus Plan,[^110] additional specific measures to ensure that
    such a range of compatible handset models will be available so that
    consumers will have access to hearing aid-compatible handsets with
    the newest features, as well as more economical models. We expect
    that these measures will increase the selection of popular and
    innovative handsets available to consumers with hearing loss.
    Moreover, as standards are promulgated and equipment is developed
    for new frequency bands, we anticipate that these rules will result
    in hearing aid-compatible phones being made available across the
    multiple frequency bands being used for a particular air interface.

54. We tentatively conclude that our rules should require equipment
    manufacturers to meet a "product refresh" requirement, as
    recommended in the *Staff Report* and described in the Joint
    Consensus Plan.[^111] This proposal would mandate that manufacturers
    meet RF interference reduction thresholds for acoustic coupling
    compatibility in some of their new models each year, enough so that,
    for manufacturers offering four or more handsets using a given air
    interface, half of the minimum required number of M3-rated or higher
    handset models would be new models introduced during the calendar
    year.[^112] To make this calculation, the number of new compliant
    models to be produced would be 50 percent of the total required
    number of compliant models, rounded up to the nearest whole
    number.[^113] For manufacturers that produce three total M3-rated
    models per air interface, at least one new M3-rated (or higher)
    model shall be introduced every other calendar year.[^114] If a
    manufacturer is not introducing a new model in a calendar year, then
    under the proposed rule it would not be required to refresh its list
    of compliant handsets.[^115]

55. Notwithstanding our tentative conclusion, we seek comment on whether
    this requirement should be modified in any way. For example, are
    there any modifications that would better promote hard of hearing
    individuals' access to new handset models without causing undue
    costs to other parties? Would the proposed "product refresh"
    requirement sufficiently ensure that, over time, compatible phones
    become available across all frequency bands as standards are
    promulgated and equipment is rolled out? We also solicit comment on
    whether there are any possible less burdensome or intrusive
    approaches or incentives that would enable the deaf and hard of
    hearing community to select fresh models on a regular basis. For any
    proposal, we ask commenters to address the disadvantages of
    deviating from the standard proposed under the Joint Consensus Plan.
    Finally, we seek comment on any implementation issues, such as
    reporting requirements that may be necessary with regard to these
    obligations,[^116] and any enforcement issues.

56. In addition to a "product refresh" rule for manufacturers, we
    tentatively conclude that our hearing aid compatibility rules should
    require Tier I carriers to offer to consumers hearing aid-compatible
    handsets with different levels of functionality. As described in the
    *Staff Report*, a proposed requirement set forth in the Joint
    Consensus Plan would obligate Tier I carriers to offer handset
    models from "multiple tiers," and include a concomitant requirement
    that these providers' reports "include information on the carriers'
    implementation of 'tiering.'"[^117] The Joint Consensus Plan further
    explains: "To provide the necessary flexibility and to address the
    difference among product lines offered by different carriers and
    manufacturers, the demarcation of tiers should be left to the
    industry."[^118] In the context of the language in the Joint
    Consensus Plan stating carriers will self-define their tiers, we
    interpret the term "tiers" to refer to levels of
    functionality.[^119] We further intend functionality to include the
    extent to which a handset model has the capability to operate over
    multiple frequency bands for which hearing aid compatibility
    standards have been established.

57. We seek comment on a tentative conclusion to require Tier I carriers
    to provide access to handsets with different levels of
    functionality. If commenters support this tentative conclusion, we
    ask them to specifically address how such an obligation might be
    effectively implemented and enforced in our rules. For instance, is
    there a need to define the obligation more precisely so that hard of
    hearing consumers have greater assurances that their carrier is
    providing access to feature-rich, as well as more economical,
    handsets, and so that service providers can better understand what
    the rule requires of them? Should we require service providers, as
    part of their reports and/or in store displays, to explain their
    "tiering" methodology so that it is clear to the Commission and
    public how these groupings and categories of compliant handsets
    break down by function and frequency band? Should service providers
    other than Tier I carriers be required to meet such an obligation?
    We welcome any comments on whether such modifications would provide
    improved benefits to consumers without unreasonably constraining
    service providers' flexibility, or whether we should adopt the model
    rule as is given the development of and consensus on such an
    obligation in the Joint Consensus Plan. Finally, commenters should
    also consider how any such tiering requirement(s) should be modified
    to the extent we modify any of the proposed new deployment deadlines
    that we tentatively conclude to adopt above.

## 2007 ANSI C63.19 Technical Standard

58. We seek comment on changing the current hearing aid compatibility
    technical standard codified in Section 20.19(b) of the Commission's
    rules.[^120] In the 2003 *Hearing Aid Compatibility Order*, the
    Commission adopted the performance levels in the 2001 version of the
    ANSI C63.19 technical standard as the basis for ensuring hearing aid
    compatibility of digital wireless handsets.[^121] In finding that
    the technical standard in Section 20.19(b) met the "established"
    requirement set forth in the Hearing Aid Compatibility Act,[^122]
    the Commission analyzed and relied on numerous submissions
    supporting ANSI C63.19 as an established technical standard.[^123]
    The Commission determined that the standard presents a workable
    approach to measuring levels of interference that digital wireless
    handsets could cause to hearing aids, as well as for measuring the
    interference immunity of hearing aids.[^124] The Commission further
    ruled that codification of ANSI C63.19 served the public interest
    because the manufacture of digital wireless handsets comporting with
    this standard would ensure that "a greater number of hearing aid and
    cochlear implant users will be able to find digital wireless phones
    that will work for them."[^125]

59. To ensure that the standard codified in the rules would remain
    viable, the Commission delegated to the Chief of WTB, in
    coordination with the Chief of the Office of Engineering and
    Technology (OET), the authority to approve future versions of the
    standard that do not raise major compliance issues. Where major
    changes to the standard are made that could affect compliance, the
    Commission stated that it would initiate an appropriate rulemaking
    proceeding to consider adoption of updated versions.[^126] The
    Commission also encouraged ANSI to work with the relevant
    stakeholders to review the standard periodically to determine
    whether improvements to the standard are warranted.[^127] As a
    result, acting on delegated authority in 2005, OET clarified that
    applicants for certification could rely on either the 2001 or a
    draft 2005 update of the ANSI C63.19 standard.[^128] In addition, in
    2006, WTB and OET released a public notice on delegated authority
    stating that applications for certification of equipment could be
    tested and rated under a 2006 revised standard (ANSI C63.19-2006)
    for wireless phone hearing aid compatibility.[^129] WTB and OET also
    explained that applicants for certification may rely on only one of
    the three versions (2001, 2005, or 2006) of the ANSI C63.19
    standard.[^130]

60. We seek comment on a tentative conclusion to change this current
    practice permitting use of multiple versions of ANSI C63.19 and,
    instead, codify a single 2007 version of the testing standard.[^131]
    ANSI C63.19-2007, an updated version of the technical standard for
    determining hearing aid compatibility, has been recently approved by
    the Accredited Standards Committee on Electromagnetic Compatibility,
    C63™ and adopted by ANSI.[^132] The differences between the previous
    version of the standard, ANSI C63.19-2006, and the ANSI C63.19-2007
    version include:

-   The distance between the cell phone under measurement and the
    measuring probe to be used when establishing the "M" rating has been
    increased from 1.0 cm to 1.5 cm.

-   The (signal+noise)-to-noise ratio to be used in determining the "T"
    rating has been increased. This will result in lower noise relative
    to the audible signal and improved performance of the wireless
    device.

-   The "T" rating for T-Coil capable wireless devices has been
    separated from the "M" rating. The new standard permits a "T" rating
    that is greater than the "M" rating for the same wireless device.

-   The axial T-coil coupling field intensity value was changed from ≥
    -13 dB (A/m) at 1 kHz to ≥ -18 dB (A/m) at 1 kHz. The standard now
    has the same T-coil field intensity value for both the axial and
    radial test positions.[^133]

    Under our proposal, this new 2007 standard would replace the 2001,
    2005 draft, and 2006 versions of the technical standard. As stated
    above, ANSI filed a petition this year requesting that the
    Commission adopt this 2007 revision of the ANSI C63.19 technical
    standard as the permanent standard.[^134] ANSI states in its
    petition that further improvements have been made to the technical
    standard to reflect changes in technology, and efficiencies and
    improvements in testing procedures.[^135] Because the standard that
    has been adopted by ANSI is stricter in some respects than prior
    versions,[^136] and is the result of broad participation from
    diverse groups,[^137] we propose that the standard be codified in
    our rules in order to better promote the development of hearing
    aid-compatible handsets that hearing-impaired consumers can readily
    use. Commenters should address whether they support such a rule
    change, and if not, identify an acceptable alternative to our
    tentative conclusion.[^138]

61. We also seek comment on a tentative conclusion to phase in the 2007
    standard. Under this proposal, we would permit both the 2006 and
    2007 versions of the standard to be used for new RF interference and
    inductive coupling hearing aid compatibility certifications through
    2009.[^139] A newly-certified handset would therefore have to meet,
    at minimum, an M3 or T3 rating as set forth in either the 2006 or
    2007 revision of the ANSI C63.19 standard to be considered
    compatible, while grants of equipment authorization previously
    issued under other versions of the standard would remain valid for
    hearing aid compatibility purposes.[^140] Then, beginning on January
    1, 2010, we would only permit use of the 2007 version of the
    standard for obtaining new grants of equipment authorization, while
    continuing to recognize the validity of existing grants under
    previous versions of the standard.[^141]

62. We seek comment on whether this two step phase-in period
    appropriately balances the interests in bringing state-of-the-art
    compatible handsets to hard of hearing consumers and in avoiding
    unreasonable burdens on manufacturers and service providers. Are
    there alternative implementations of the 2007 standard that would
    better serve these goals? For example, would there be any advantage
    in retaining the 2001 and 2005 versions as permitted standards for
    new M3 and/or T3 handset certifications during the transition
    period? Our understanding is that manufacturers generally no longer
    use these standards, but we seek comment on whether we should
    deviate from this proposal if there is any benefit in terms of
    flexibility without offsetting costs to affected consumers. We also
    seek comment on whether a shorter passage of time for the transition
    would afford a greater benefit to the deaf and hard of hearing
    community without unreasonably burdening manufacturers and service
    providers, or whether the industry needs a longer transition period.
    In addition, we seek comment on whether the grandfathering
    provisions for previously-certified handsets strike an appropriate
    balance, or whether at some point we should require handsets to be
    recertified under the 2007 standard in order to be considered
    compatible. Unless commenting parties support a different process,
    we are prepared to grant the ANSI Petition and adopt the phase-in
    process as outlined in the Joint Consensus Plan.[^142] Commenters
    should focus on any details that may need to be resolved in order to
    make such a transition smooth and transparent to users of hearing
    aid-compatible handsets.

## Reporting Obligations, Public Information, and Outreach

63. In this section, we seek comment on proposed requirements relating
    to manufacturers' and service providers' filing of hearing aid
    compatibility reports with the Commission, as well as other public
    information and outreach measures.

64. As discussed below, since 2003 manufacturers and service providers
    have filed regular reports with the Commission detailing their
    hearing aid compatibility efforts. In order to address shortcomings
    that have been observed in the existing reports and to render future
    reports as transparent and useful as possible for consumers,
    industry, and Commission staff responsible for helping to ensure
    that the Commission's hearing aid compatibility requirements are
    fully implemented, we tentatively conclude to adopt new content
    requirements, as recommended in the *Staff Report* and proposed in
    the Joint Consensus Plan. We also seek comment on additional ways to
    improve the reports. In addition, we request comment on questions
    relating to the timing of future reports. Finally, we seek comment
    on other potential measures to improve the availability of
    information to the public, both through the Commission and directly
    from manufacturers and service providers.

### Reporting

65. [Background]{.underline}. In the *Hearing Aid Compatibility Order*,
    the Commission established a schedule requiring manufacturers and
    wireless service providers to report on compliance efforts every six
    months from 2004 through 2006,[^143] and then annually in 2007 and
    2008.[^144] Thus, manufacturers and wireless service providers filed
    their most recent compliance reports on November 17, 2006.[^145]
    These reports include a variety of required information describing
    manufacturers' and service providers' efforts aimed at complying
    with Commission requirements for hearing aid compatibility.
    Specifically, the Commission requires that these reports include the
    following content:

```{=html}
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```
(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 *Hearing Aid Compatibility
    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.[^146]

```{=html}
<!-- -->
```
66. As the Commission has stated, these reports are intended to serve
    dual purposes: (1) assisting the Commission in monitoring handset
    deployment progress, and (2) providing valuable information to the
    public concerning the technical testing and commercial availability
    of hearing aid-compatible handsets.[^147] The Commission also stated
    that the reports would assist its efforts to verify compliance
    with,[^148] and undertake an analysis of,[^149] the 50 percent
    handset deployment benchmarks in 2008 discussed above.[^150]
    Accordingly, we closely reviewed the information in the reports to
    monitor handset deployment progress, with the goal of proactively
    resolving any potential for delay. Commission staff has also
    analyzed the data contained in the reports to comply with Congress'
    requirement that the Commission periodically review and scrutinize
    its hearing aid compatibility regulations.[^151] Finally, these
    reports can be a very important source of information, both for
    consumers, particularly those with hearing disabilities, and for
    service providers seeking information regarding the hearing aid
    compatibility of manufacturers' products.[^152]

67. [Discussion]{.underline}. Given the importance of these objectives,
    we tentatively conclude not only to continue requiring service
    providers and manufacturers to report regularly on the availability
    of hearing aid-compatible products, but to enhance and improve the
    content of the reports that are filed. As reported in the *Staff
    Report*, there is evidence in the record that some of the
    information in the existing compliance reports may not be as
    complete or as helpful as possible for consumers, wireless service
    providers, or the Commission.[^153] Furthermore, WTB staff
    encountered difficulties when verifying the ratings for certain
    handset models identified in compliance reports, because many of the
    compliance reports referenced the handset manufacturer and model
    number but did not include the associated FCC ID.[^154] In order to
    address these shortcomings, the Joint Consensus Plan includes
    proposed requirements that will render the reports more helpful to
    consumers and others by providing them with better information
    concerning the commercial availability of compliant handsets.
    Specifically, the Joint Consensus Plan recommends that reports
    include:[^155]

    [Manufacturers]{.underline}:

```{=html}
<!-- -->
```
(1) digital wireless phones tested;

(2) compliant phone models using the FCC ID number and ratings according
    to C63.19;

(3) status of product labeling;

(4) outreach efforts;

(5) total numbers of compliant phone models offered as of the time of
    the report; and

(6) information pertaining to product refresh.

    [Service providers]{.underline}:

    1.  compliant phone models using the FCC ID number and ratings
        according to C63.19;

    2.  status of product labeling;

    3.  outreach efforts;

    4.  information related to the retail availability of compliant
        phones;

    5.  total numbers of compliant and non-compliant phone models
        offered as of the time of the report; and

    6.  the "tiers" into which the compliant phones fall.

```{=html}
<!-- -->
```
68. We propose to adopt these reporting criteria and ask commenters to
    address whether they capture the appropriate information and level
    of detail. In particular, to clarify the information collection
    recommended in the Joint Consensus Plan, we propose to require both
    manufacturers and service providers to provide the model number and
    FCC ID directly associated with each model that they are reporting
    as compatible, together with the "M" and "T" rating that each such
    model has been certified as achieving under the ANSI C63.19
    standard. We would accept the manufacturer's determination of
    whether a device is a distinct model consistent with the
    manufacturer's marketing practices, so long as models that have no
    distinguishing variations of form, features, or user capabilities,
    or that only differentiate units sold to a particular carrier, are
    not separately counted as distinct models to customers. We further
    propose to require that reports include the air interface(s) and
    frequency band(s) over which each compatible model operates. We seek
    comment on these proposed additional requirements. In addition,
    should we vary the information sought depending on the type of
    service provider (*e.g*., Tier I carrier vs. other service
    provider)?

69. We also seek comment on additional ways to improve the quality and
    usefulness of the reports, including whether we should require
    additional information beyond that proposed in the Joint Consensus
    Plan. Would a standardized form, template, or format facilitate
    accurate and complete reporting? Unless commenters support another
    process, we propose to authorize Commission staff to develop a
    standardized reporting format for collecting information. Moreover,
    if such a format could be created electronically, would this enable
    the Commission more effectively to monitor the overall state of
    industry compliance as compared to other alternatives? Would it be
    beneficial to integrate such a new format with the Commission's
    electronic database of equipment authorizations such that they
    cross-reference and update one another?

70. In addition, we seek comment regarding the schedule under which we
    should require future reports. Under the proposal contained in the
    Joint Consensus Plan, the Commission would adopt a staggered
    schedule whereby manufacturers would be required to provide an
    annual status report to the Commission beginning November 30, 2007,
    Tier I carriers would be required to provide an annual status report
    to the Commission six months later beginning May 30, 2008, and Tier
    II and III carriers would be required to provide an annual status
    report beginning May 30, 2009.[^156] These reporting requirements
    would continue annually thereafter through the November report in
    2012.[^157] We seek comment on a tentative conclusion to adopt
    substantially this schedule, but with certain refinements. First,
    given the timing of this rulemaking proceeding, we expect that
    manufacturers and service providers will be required to comply with
    current rules for November 2007 reporting.[^158] To the extent we
    maintain the current November 17, 2007 reporting deadline during the
    instant rulemaking, commenters should consider how the remaining
    schedule may need to be modified. For example, should we begin the
    staggered reporting process with manufacturers reporting again in
    May 2008 and Tier I carriers reporting in November 2008?[^159]
    Commenters should also evaluate the advantages and disadvantages of
    requiring reports more often (*e.g.*, every three or six months) and
    relate the burdens imposed versus the corresponding benefits.

71. In addition, we question the Joint Consensus Plan proposal to adopt
    a delayed reporting requirement for Tier II and III carriers whereby
    their next reports would not be required until a year after the Tier
    I carriers' reports. In light of the recommendations in the *Staff
    Report* and our objectives described above, especially for consumers
    who receive service from such providers, we seek comment on whether
    it serves the public interest to delay their next reports for a
    period of 18 months to two years from their reports that will be
    submitted in November 2007, or whether they should instead be held
    to the same schedule as Tier I carriers in order to provide a steady
    source of information to consumers and to the Commission. Moreover,
    given that Tier II and III carriers have already been filing reports
    regularly, we seek comment on the extent of the burdens that would
    be avoided by postponing their first reports as proposed under the
    Joint Consensus Plan, balanced against the extent of information
    that would be lost by introducing a gap of 18 months or more in
    their reporting. Commenters should also address whether the
    reporting deadlines for Tier II and III carriers should depend on
    our adoption of staggered deployment deadlines.[^160] Finally, if we
    adopt different reporting deadlines for Tier I versus Tier II and
    III carriers, we seek comment on the rules that should apply to
    resellers and to MVNOs.

### Public Information and Outreach

72. In addition to the content and frequency of manufacturer and service
    provider reports, we seek comment on other ways to increase the
    availability of hearing aid compatibility information to consumers,
    service providers, and other interested parties. As explained in the
    *Staff Report*, the Commission's existing databases and websites are
    of limited value for these purposes.[^161]

73. For example, although OET's equipment authorization database has
    information about hearing aid compatibility ratings associated with
    manufacturers' equipment, the database maintains such information
    based on FCC IDs, not handset model numbers,[^162] and it does not
    maintain a single clear, current record associated with each
    ID.[^163] Thus, it is difficult -- particularly for an inexperienced
    user -- to search for hearing aid-compatible models based either on
    the manufacturer's name or on the model's FCC ID. Similarly, the
    Disability Rights Office (DRO) of the Consumer and Government
    Affairs Bureau maintains a website that explains the disability
    access rules and provides contact information for manufacturers and
    service providers, but this website does not include information
    regarding the compatibility of particular handset models.[^164] As
    noted in the *Staff Report*, although a consumer wishing to file a
    complaint under Section 255 of the Communications Act[^165] can
    locate the designated agent's name and contact information from the
    Commission's website, no similar information is available under the
    process governing complaints for violations of hearing aid
    compatibility requirements.[^166]

74. In recognition of these shortcomings, we seek comment on potential
    measures to improve the value of these databases and websites for
    parties seeking hearing aid compatibility information, including,
    for example, adding a relevant search function to the equipment
    authorization database or adding links to manufacturers' and service
    providers' websites from the DRO's web page.[^167] In addition to
    the ongoing efforts of Commission staff to continue to improve
    information available to consumers, service providers, and other
    interested parties, we seek comment as to any specific measures the
    Commission should require or take. For example, should we require
    manufacturers to include in their equipment authorization filings
    the handset models associated with each FCC ID number, and to update
    this information when they introduce new models? Should we adopt new
    Part 2 rules to require a filing for permissive changes that
    includes trade names and model numbers?[^168] We also request
    comment on whether to require manufacturers and service providers
    subject to the Commission's hearing aid compatibility rules to
    follow the same procedures as those applicable to Section 255
    complaints, and to have the Commission publish hearing aid
    compatibility designated agents' contact information on the DRO
    website.[^169] We seek comment on the benefits and costs of any such
    requirements, and on any alternatives that may further our objective
    with less potential burden. Are there other steps we can take to
    develop a single location or website where hearing aid users can
    find the ratings and model numbers of compliant handsets offered by
    manufacturers and service providers?

75. We also seek comment on how the Commission can encourage digital
    wireless handset manufacturers and service providers to engage in
    additional outreach efforts to assist consumers with hearing
    disabilities as they shop for wireless phones.[^170] We note that
    HIA has recently announced that its member hearing aid manufacturers
    will voluntarily include in their user manuals information about
    compatibility with mobile phones. In this regard, the Joint
    Consensus Plan urges manufacturers and service providers to
    voluntarily post hearing aid compatibility ratings not only for
    handsets that meet the Commission's compatibility benchmarks but for
    all devices, including those rated M1 or M2.[^171] Although some
    service providers currently provide information on their company
    websites,[^172] the content varies and may not always be up to date.
    In addition, although wireless handset manufacturers at the time of
    the *Hearing Aid Compatibility Order* agreed to provide group
    information on wireless phones that provide hearing aid
    compatibility characteristics through a combined information source
    established by CTIA,[^173] this resource currently does not provide
    information about service providers other than the four Tier I
    carriers.[^174]

76. Thus, as recommended in the *Staff Report*,[^175] we seek comment on
    how best to promote the availability of useful hearing aid
    compatibility information on manufacturers' and service providers'
    websites, including whether we should not only encourage but require
    the posting of such information. We further seek comment as to what
    requirements or guidelines, if any, we should provide regarding the
    content of such postings. For example, should the information to be
    provided be modeled on the reporting criteria, discussed above, or
    should it be more limited? If manufacturers are required to meet a
    "product refresh" commitment,[^176] should manufacturers and service
    providers be held to an outreach obligation specifically to inform
    the public about these new models?

77. Consistent with the recommendations in the *Staff Report*,[^177] we
    also seek comment generally on any other ways that wireless
    manufacturers, service providers, and independent retailers can
    improve the effectiveness of their in-store testing, consumer
    education, and other consumer outreach efforts. These efforts would,
    ideally, include new ways of publicly identifying compliant phones
    for consumers and audiologists, as well as efforts that independent
    retailers could take to facilitate such identification. In addition,
    in order to assist consumers as they shop for wireless phones, we
    also ask whether there are additional steps the Commission can take
    to facilitate the flow of information between consumers,
    manufacturers, and service providers to meet our hearing aid
    compatibility outreach objectives.

## Other Components of Joint Consensus Plan, and Related Proposals

78. As recommended in the *Staff Report*, we seek comment on several
    additional proposals in the Joint Consensus Plan, as well as on
    matters related to those proposals. Interested parties should
    discuss the advantages and disadvantages of these ideas and present
    any related hearing aid compatibility proposals or
    counter-proposals.

79. *Other Spectrum Bands*. The Joint Consensus Plan contains a request
    that the Commission apply the Commission's hearing aid compatibility
    rules to all spectrum bands that are used for the provision of CMRS
    in the United States, subject to standards development.[^178] As
    discussed previously,[^179] we determined earlier this year that all
    digital CMRS providers, regardless of the particular band in which
    they were operating, as well as manufacturers of handsets capable of
    providing such services, should be subject to the hearing aid
    compatibility requirements set forth in Section 20.19 to the extent
    that a service satisfies the scope provision for hearing aid
    compatibility set forth in our Part 20 rules.[^180] We seek comment
    generally on whether any further action is necessary or appropriate
    in this regard, and in particular on several specific questions that
    relate to the extension of hearing aid compatibility requirements to
    new frequency bands. First, we seek comment on how our current
    hearing aid compatibility requirements apply to mobile satellite
    service (MSS) providers that offer CMRS and whether any revisions to
    the hearing aid compatibility rules are appropriate respecting such
    providers, in order to promote consistent treatment for all CMRS
    providers that offer functionally equivalent services.[^181] In this
    regard, we ask commenters to address whether it should make a
    difference if an MSS provider offers service purely through a
    satellite-based network or through a combined network that relies on
    both satellite and ancillary terrestrial component (ATC)
    facilities.[^182]

80. Second, we agree with the recommendation in the *Staff Report* that
    standard-setting bodies should strive to develop hearing aid
    compatibility standards together with technical operating
    specifications for new frequency bands.[^183] We seek comment on any
    measures that we should take to promote this practice.

81. Third, as noted above, the Commission has held that if a handset
    manufacturer or service provider offers a multi-band handset in
    order to comply with the hearing aid compatibility requirements, the
    handset must be hearing aid-compatible in each frequency band over
    which it operates.[^184] We tentatively conclude to codify this
    requirement in Section 20.19 of the rules. We further tentatively
    conclude, consistent with this principle, that multi-band phones
    should not be counted as compatible in any band if they operate over
    frequency bands for which technical standards have not been
    established. We believe this limitation would conform with
    consumers' expectation that a phone labeled \"hearing aid
    compatible\" is compatible in all its operations. Treating such
    handsets as not compatible would also create incentives for industry
    bodies to develop compatibility standards for new frequency bands
    more quickly. We seek comment on this tentative conclusion.

82. Fourth, we note that the ANSI C63.19 standard includes target values
    for hearing aid compatibility validation procedures for operation
    over specific air interfaces at frequencies in the ranges of 800-950
    MHz and 1.6-2.5 GHz.[^185] In the *700 MHz Service Report and
    Order*, we stated that once technical standards are established for
    a new frequency band, the Commission would initiate a further
    proceeding to establish a specific timetable for deployment of
    hearing aid-compatible handsets in that band.[^186] Accordingly, we
    tentatively conclude to revise Section 20.19(b) to include services
    operating over any frequencies within these two bands, to the extent
    they employ air interfaces for which hearing aid compatibility
    technical standards have been established and approved by the
    Commission. We seek comment on this tentative conclusion, including
    whether any other revisions to Section 20.19 are necessary in
    connection with the inclusion of these services.

83. In addition, we now seek comment on whether we can, and should,
    establish a mechanism under which hearing aid compatibility
    regulations would become applicable to future frequency bands as
    soon as, or within a defined period after, technical standards are
    established for relevant air interfaces. Under our current rules,
    the Commission must modify Section 20.19 pursuant to rulemaking to
    add new services or new frequency bands. Amending Section 20.19 so
    that a rule change is not necessary every time technical standards
    are established for new services, new air interfaces, or new
    frequency bands potentially would bring the benefits of compatible
    handsets more quickly to consumers and would provide greater
    certainty to all affected parties. In addition, to the extent that
    manufacturers and service providers are already meeting their
    obligations to offer defined numbers or percentages of hearing
    aid-compatible handsets over previously covered services, the
    automatic extension of our rules to additional frequency bands may
    not impose significant additional burdens, and may even assist
    manufacturers and service providers in achieving compliance by
    permitting them to count multi-band models as compliant. We ask
    commenters to address both the benefits and the drawbacks of an
    automatic effectiveness regime, as well as what the specific rules
    should entail. Under existing rules, the Commission generally must
    approve revised versions of ANSI C63.19 for such revised standards
    to take effect for purposes of our hearing aid compatibility
    requirements.[^187] Should a standard be considered "established"
    for a new frequency band upon its promulgation by C63, or should
    there be a process for the Commission or its staff to review or
    approve the standard, and if so what should that process be?

84. *Multi-Mode Handsets*. We tentatively conclude to adopt the proposal
    in the Joint Consensus Plan stating that multi-mode handsets do not
    satisfy Section 20.19 for any air interface unless they are
    compatible in all air interfaces over which they operate.[^188] This
    approach is consistent with the Commission's previous holding
    regarding multi-band handsets.[^189] We further tentatively
    conclude, consistent with our tentative conclusion regarding
    multi-band handsets, that multi-mode phones should not be counted as
    compatible in any mode if they operate over air interfaces for which
    technical standards have not been established. As explained above,
    we believe this rule would conform to consumers' expectations and
    would help promote the rapid development of compatibility standards
    for new air interfaces. We seek comment on these tentative
    conclusions and on any other potential measures to promote the
    development of compatibility standards for new air interfaces
    together with technical operating specifications.

85. *De Minimis Exception*. The Joint Consensus Plan proposes that the
    Commission retain the *de minimis* exception and clarify that it
    applies on a per-air interface basis.[^190] In the Second Report and
    Order above, we conclude that the record compiled in response to the
    *Hearing Aid Compatibility Reconsideration Order and Further Notice*
    does not support any narrowing of the *de minimis* exception.[^191]
    We invite further comment on this question. In addition, the
    Commission has already clarified that the *de minimis* exception
    applies on a per-air interface basis, rather than across a
    manufacturer's or carrier's entire product line.[^192] We
    tentatively conclude that this clarification should be codified in
    our rules. We seek comment on this tentative conclusion.

86. *2010 Further Review*. The Joint Consensus Plan proposes that the
    Commission establish a further review of the hearing aid
    compatibility rules in 2010.[^193] We tentatively conclude to adopt
    this proposal, and we seek comment. In particular, given the timing
    of the obligations we propose today, we seek comment on whether such
    a review would be more appropriate at a later date, such as in 2012.
    Once the proposed deployment deadlines have passed and the
    Commission can assess the effectiveness of any action we take
    arising out of our proposals herein, we may decide to add new or
    additional obligations, or on the other hand, reduce our oversight
    role if the state of competition or technology supports such action.

87. *Volume Controls.* Consistent with the Joint Consensus Plan's
    recommendation, we urge all interested parties to specifically look
    into adding volume controls to wireless handsets. As discussed in
    the *Staff Report*, some in the deaf and hard of hearing community
    state that one of the hearing aid users' most important concerns
    regarding wireless devices is the lack of adequate volume control on
    handsets.[^194] We seek comment on whether any volume control
    requirements should be incorporated into our rules, and if so what
    they should be.[^195]

88. Similarly, the Technology Access Program of Gallaudet University has
    pointed out that the display screens on smart phones emit
    electromagnetic energy that may interfere with the operation of
    hearing aids.[^196] We invite comment on this issue, including
    whether any measures are appropriate to promote the deployment of
    phones that enable users to turn off their screens.

## Emerging Technologies

89. We seek comment on whether our hearing aid compatibility rules
    should be modified to address new technologies being used and
    offered by manufacturers and providers in their wireless handsets
    and networks. Under current Commission rules, manufacturers and
    service providers are required to meet the Commission's hearing aid
    compatibility standards only to the extent that handsets are
    associated with digital CMRS networks that "offer real-time, two-way
    switched voice or data service that is interconnected with the
    public switched network and utilize\[\] an in-network switching
    facility that enables the provider to reuse frequencies and
    accomplish seamless hand-offs of subscriber calls."[^197] We seek
    comment on whether we should extend some or a portion of the hearing
    aid compatibility requirements under Section 20.19 to wireless
    handsets that may fall outside the definition of CMRS and the
    criteria in Section 20.19(a), such as handsets that operate on
    unlicensed WiFi[^198] networks that do not employ "an in-network
    switching facility that enables the provider to reuse frequencies
    and accomplish seamless hand-offs."[^199]

90. The *Staff* *Report* provides several examples of service providers
    offering access to VoIP applications over WiFi and other wireless
    technologies.[^200] For example, the report describes how wireless
    handset manufacturers are increasingly using WiFi to expand consumer
    access to VoIP services,[^201] and it explains how some handsets
    being marketed today for voice telephony have dual-mode voice
    operability between unlicensed modes and the traditional licensed
    networks subject to Section 20.19.[^202] The report also discusses
    handsets that combine voice operation over traditional licensed CMRS
    networks with WiFi data service.[^203] Consistent with our
    commitment under the Hearing Aid Compatibility Act of 1988, we agree
    with the recommendation in the *Staff Report* that the Commission
    should consider whether to change its rules to address these
    developments. With services using emerging technologies becoming
    increasingly popular with consumers, we seek comment on how to apply
    our hearing aid compatibility rules consistently and in a
    technology-neutral manner, and how to ensure that an appropriate
    selection of operating handset models continues to meet the needs of
    the deaf and hard of hearing community.

91. First, we seek comment generally on the application of our hearing
    aid compatibility rules to VoIP applications provided over wireless
    technologies such as WiFi and other emerging technologies. Under the
    Hearing Aid Compatibility Act, telephones used with public mobile
    services and private radio services are exempt from the general
    requirement that all newly manufactured telephones meet hearing aid
    compatibility standards, unless that exemption is lifted by the
    Commission.[^204] In 2003, the Commission partially lifted this
    exemption for telephones used with broadband PCS, cellular, and SMR
    services that 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.[^205] In doing so, the Commission crafted a tailored rule
    that not only recognized the extent of technical standards that had
    been established, but encompassed those services that were then
    almost exclusively used for interconnected mobile voice access. More
    recently, we expanded our rule to cover all digital CMRS that meet
    the criteria specified in the rule, subject to the existence of
    applicable standards, in recognition that similar services will soon
    be provided to the mass market outside of the previously identified
    bands.[^206]

92. We ask commenters to address how current and anticipated future use
    of VoIP applications over wireless networks, both interconnected and
    non-interconnected, would be treated under the interaction of the
    Hearing Aid Compatibility Act and our rules. To the extent such
    services are not within the current scope of Section 20.19(a), are
    they exempt from hearing aid compatibility obligations, or would
    they fall under the general rule requiring hearing aid compatibility
    for all newly manufactured telephones?[^207] If the latter, how
    would this requirement apply in the absence of established technical
    standards,[^208] or if there are different standards between, for
    example, cordless phones and mobile wireless phones both supporting
    VoIP and used by consumers in similar situations? Moreover, what
    constitutes a telephone in the context of new devices that more
    closely resemble mobile computers but have voice communications
    capabilities? Should we broaden or otherwise modify the scope of
    Section 20.19 in order both to maintain technological neutrality and
    to insure that hard of hearing consumers continue to have access to
    a selection of wireless services and features comparable to the
    general population? If so, how should any new language be crafted?
    Commenters suggesting changes are asked to address not only the
    policy reasons for their proposed revisions, but also the
    Commission's legal authority to adopt them under the Hearing Aid
    Compatibility Act and the Communications Act.

93. In addition, we solicit comment as to whether any new hearing aid
    compatibility rules are appropriate to address handsets that combine
    covered mobile voice operation with data services provided over WiFi
    networks or other emerging technologies. We note that such service
    combinations may be particularly attractive to deaf and hard of
    hearing consumers, but that our current rules do not necessarily
    require that any such handsets be hearing aid-compatible if the
    manufacturer and service provider satisfy their hearing aid
    compatibility benchmarks using other models.[^209] Elsewhere in this
    Notice, we tentatively conclude to adopt "product refresh" and
    "tiering" rules that are intended to ensure consumers who use
    hearing aids will have access to mobile handsets with a range of
    functionalities.[^210] We seek comment as to whether these proposed
    rules appropriately promote the availability of hearing
    aid-compatible handsets that include data services provided over
    WiFi networks or other emerging technologies, or whether additional
    measures are needed. In this regard, we note that the requirements
    of Section 20.19 apply to handsets used with either voice or data
    services that fall within its terms.[^211] We seek comment as to the
    implications of imposing hearing aid compatibility requirements
    based on the provision of wireless data services, and whether this
    provision should be changed.

94. Finally, we invite broad comment on what additional regulatory
    obligations may be appropriate to address the issues raised by
    emerging wireless technologies, taking into account the statutory
    goal to promote equal access to communications equipment and
    services for consumers with hearing loss as well as economic,
    technological, and legal constraints.[^212] Regulation may be
    appropriate when new technology causes people with hearing
    disabilities to lose access, but we are unsure what the extent of
    any access problem may be and what measures may best address any
    such problem, and we therefore invite commenters to address this
    question. As emerging technologies progress, the deaf and hard of
    hearing community should be able to benefit to a similar degree as
    the mainstream population, as has been our goal under Section 20.19.

## Networks using Open Platforms for Devices and Applications 

95. In the *700 MHz Second Report and Order*, we required that licensees
    of the Upper 700 MHz Band C Block of spectrum provide "open
    platforms" for devices and applications to allow customers, device
    manufacturers, third-party application developers, and others to use
    the devices and applications of their choosing in C Block networks,
    subject to certain reasonable network management conditions that
    allow the licensee to protect the network from harm.[^213] We
    explained that "handsets connected to the network but not actually
    offered by the provider do not alter the extent to which the
    provider has complied with . . . \[our hearing aid compatibility\]
    requirement\[s\]."[^214] The open platform network mandate, however,
    may fundamentally alter the paradigm within which the hearing aid
    compatibility rules apply. As currently constituted, Section 20.19
    of our rules imposes hearing aid compatibility obligations only on
    manufacturers and providers of services within its scope, including
    resellers and MVNOs.[^215] With the growth of open platform
    networks, however, entities other than the traditional equipment
    manufacturers and service providers may become increasingly
    significant. For example, Skype Communications S.a.r.l. operates as
    an application developer providing software applications that ride
    over a service provider's network to enable VoIP communications.
    While the existing requirements on manufacturers,[^216] together
    with the open platform requirements themselves, may be adequate to
    ensure sufficient hearing aid-compatible handset choice for
    consumers, we seek comment on whether any additional hearing aid
    compatibility requirements should be imposed in the context of open
    platform networks.[^217]

96. We seek comment both on whether to impose additional hearing aid
    compatibility requirements on manufacturers in the context of open
    platform networks, and on whether to extend any requirements to
    entities that are not currently covered. For example, should we
    modify our rules to require that for open platform networks for
    which they offer handsets, manufacturers must make available a
    certain number or percentage of hearing aid-compatible models to
    consumers through channels other than the service provider? In
    addition, we seek comment on whether and how to extend our hearing
    aid compatibility requirements to the responsible manufacturing
    party in joint venture situations. For example, if one partner
    produces phones on a build-to-suit basis for a second party that
    markets and prices the handset devices to service providers, which
    party should be held responsible for compliance in such a
    production/distribution scheme?

97. We also seek comment on whether and how to extend our hearing aid
    compatibility rules, including handset deployment, information, and
    outreach requirements, from service providers to other entities
    offering handsets to consumers within an open platform environment.
    For example, as discussed above, the record compiled in response to
    the notice portion of the *Hearing Aid Compatibility Order on
    Reconsideration and Further Notice* did not support extending
    in-store testing requirements beyond retail outlets owned or
    operated by service providers.[^218] Considering the development of
    open platform networks, however, there may be a greater need for
    in-store testing by independent retailers or other third parties. We
    therefore seek comment on whether these or other rules should be
    revised in the context of open platform networks. We seek comment on
    the regulatory status under our current hearing aid compatibility
    rules of application developers and other potential new participants
    using open platform networks, and on whether any new hearing aid
    compatibility requirements should appropriately be imposed on such
    entities.

# STAY of February 18, 2008 requirements

98. As discussed above, under existing rules manufacturers and wireless
    service providers are required to ensure that, by February 18, 2008,
    at least 50 percent of their handset models over each air interface
    meet a U3/M3 (or higher) rating for RF interference reduction, as
    codified in Section 20.19 of our rules.[^219] However, in the Notice
    we tentatively conclude to modify this particular hearing aid
    compatibility benchmark by including an alternative benchmark for
    February 18, 2008, as well as additional benchmarks for
    2009-2011.[^220] In addition, we propose to impose new benchmarks
    for deploying handsets that meet standards for providing inductive
    coupling capability during 2008-2011.[^221]

99. We intend to issue a Report and Order addressing the issues raised
    in this Notice in the near future, in advance of the upcoming
    February 18, 2008 benchmark. In consideration of the need for
    certainty, and in order to provide appropriate notification to
    manufacturers and service providers as regards the hearing aid
    compatibility obligations, we determine that it is in the public
    interest to stay enforcement of that particular benchmark for 60
    days, until April 18, 2008.

# PROCEDURAL MATTERS

100. *Ex Parte Rules*. Pursuant to Section 1.1206 of the Commission\'s
     *ex parte* rules, 47 C.F.R. § 1.1206, this rulemaking proceeding
     proposing the amendment of the Commission's rule governing hearing
     aid compatible telephones is a permit-but-disclose proceeding.
     Provided they are disclosed in accordance with the Commission\'s
     rules, *ex parte* presentations are permitted, except during the
     Sunshine Agenda period.

101. *Filing Procedures*. Pursuant to sections 1.415 and 1.419 of the
     Commission's rules, 47 CFR §§ 1.415, 1.419, interested parties may
     file comments and reply comments on or before the dates indicated
     on the first page of this document. **Comments and reply comments
     should be filed in WT Docket No. 07-250**. Comments may be filed
     using: (1) the Commission's Electronic Comment Filing System
     (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by
     filing paper copies. *See Electronic Filing of Documents in
     Rulemaking Proceedings*, 63 FR 24121 (1998).

-   Electronic Filers: Comments may be filed electronically using the
    Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the
    Federal eRulemaking Portal: http://www.regulations.gov. Filers
    should follow the instructions provided on the website for
    submitting comments.

    -   For ECFS filers, if multiple docket or rulemaking numbers appear
        in the caption of this proceeding, filers must transmit one
        electronic copy of the comments for each docket or rulemaking
        number referenced in the caption. In completing the transmittal
        screen, filers should include their full name, U.S. Postal
        Service mailing address, and the applicable docket or rulemaking
        number. Parties may also submit an electronic comment by
        Internet e-mail. To get filing instructions, filers should send
        an e-mail to ecfs@fcc.gov, and include the following words in
        the body of the message, "get form." A sample form and
        directions will be sent in response.

```{=html}
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-   Paper Filers: Parties who choose to file by paper must file an
    original and four copies of each filing. If more than one docket or
    rulemaking number appears in the caption of this proceeding, filers
    must submit two additional copies for each additional docket or
    rulemaking number.

> Filings can be sent by hand or messenger delivery, by commercial
> overnight courier, or by first-class or overnight U.S. Postal Service
> mail (although we continue to experience delays in receiving U.S.
> Postal Service mail). All filings must be addressed to the
> Commission's Secretary, Office of the Secretary, Federal
> Communications Commission.

-   The Commission's contractor will receive hand-delivered or
    messenger-delivered paper filings for the Commission's Secretary at
    236 Massachusetts Avenue, NE, Suite 110, Washington, DC 20002. The
    filing hours at this location are 8:00 a.m. to 7:00 p.m. All hand
    deliveries must be held together with rubber bands or fasteners. Any
    envelopes must be disposed of [before]{.underline} entering the
    building.

-   Commercial overnight mail (other than U.S. Postal Service Express
    Mail and Priority Mail) must be sent to 9300 East Hampton Drive,
    Capitol Heights, MD 20743.

-   U.S. Postal Service first-class, Express, and Priority mail must be
    addressed to 445 12^th^ Street, SW, Washington DC 20554.

People with Disabilities: To request materials in accessible formats for
people with disabilities (braille, large print, electronic files, audio
format), send an e-mail to fcc504@fcc.gov or call the Consumer &
Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

102. *Regulatory Flexibility Act*. Pursuant to the Regulatory
     Flexibility Act, 5 U.S.C. § 603, the Initial Regulatory Flexibility
     Act Analysis is set forth at Appendix C. We request written public
     comments on the Initial Regulatory Flexibility Analysis. These
     comments must be filed in accordance with the same filing deadlines
     as the comments on the rest of the Notice of Proposed Rule Making,
     but they must have a separate and distinct heading designating them
     as responses to the Initial Regulatory Flexibility Analysis. The
     Commission's Consumer Information Bureau, Reference Information
     Center, shall send a copy of this Notice of Proposed Rule Making,
     including the Initial Regulatory Flexibility Analysis, to the Chief
     Counsel for Advocacy of the Small Business Administration, in
     accordance with the Regulatory Flexibility Act.

103. *Initial Paperwork Reduction Act*. This Notice of Proposed
     Rulemaking contains proposed new and modified information
     collection requirements.  The Commission, as part of its continuing
     effort to reduce paperwork burdens, invites the general public and
     the Office of Management and Budget (OMB) to comment on the
     information collection requirements contained in this document, as
     required by the Paperwork Reduction Act of 1995, Public Law
     104-13.  Comments should address: (a) whether the proposed
     collection of information is necessary for the proper performance
     of the functions of the Commission, including whether the
     information shall have practi­cal utility; (b) the accuracy of the
     Commission's burden estimates; (c) ways to enhance the quality,
     utility, and clarity of the information collected; and (d) ways to
     minimize the burden of the collection of information on the
     respondents, including the use of automated collection techniques
     or other forms of information technology. In addition, pursuant to
     the Small Business Paperwork Relief Act of 2002, Public Law
     107-198, *see*  44 U.S.C. 3506(c)(4), we seek specific comment on
     how we might "further reduce the information collection burden for
     small business concerns with fewer than 25 employees.\" We note,
     however, that Section 213 of the Consolidated Appropriations Act of
     2000, Pub. L. No. 106-113, provides that rules governing
     frequencies in the 746-806 MHz Band become effective immediately
     upon publication in the Federal Register without regard to certain
     sections of the Paperwork Reduction Act. We therefore do not invite
     comment on any information collections to the extent they concern
     frequencies in the 746-806 MHz Band. In addition to filing comments
     with the Secretary, a copy of any PRA comments on the information
     collections contained herein should be submitted to Judith B.
     Herman, Federal Communications Commission, 445 Twelfth Street,
     S.W., Room 1-B441, Washington, D.C. 20554, or by sending an email
     to PRA@fcc.gov and to Nicholas A. Fraser, OMB desk officer, via the
     Internet to nfraser@omb.eop.gov or via fax at 202-395-5167.

# ORDERING CLAUSES

104. IT IS ORDERED that, pursuant to the authority of sections 4(i),
     303(r), and 710 of the Communications Act of 1934, as amended, 47
     U.S.C. §§ 154(i), 303(r), and 610, this Second Report and Order and
     Notice of Proposed Rulemaking IS HEREBY ADOPTED.

105. IT IS FURTHER ORDERED that pursuant to applicable procedures set
     forth in Sections 1.415 and 1.419 of the Commission**'**s Rules, 47
     C.F.R. §§ 1.415, 1.419, interested parties may file comments on the
     Notice of Proposed Rulemaking on or before 30 days after
     publication of the Notice of Proposed Rulemaking in the Federal
     Register and reply comments on or before 45 days after publication
     in the Federal Register.

106. IT IS FURTHER ORDERED that the petition of American National
     Standards Institute Accredited Standards Committee C63 (EMC) ANSI
     ASC C63™ IS GRANTED to the extent set forth herein.

107. IT IS FURTHER ORDERED that, pursuant to the authority of section
     4(i) of the Communications Act, as amended, 47 U.S.C. § 154(i), and
     section 1.3 of the Commission's rules, 47 C.F.R. § 1.3, the
     requirements of sections 20.19(c)(1)(ii), 20.19(c)(2)(ii), and
     20.19(c)(3)(ii) of the Commission's rules, 47 C.F.R. §§
     20.19(c)(1)(ii), 20.19(c)(2)(ii), 20.19(c)(3)(ii), ARE STAYED until
     April 18, 2008.

108. IT IS FURTHER ORDERED that the Commission's Consumer Information
     Bureau, Reference Information Center, SHALL SEND a copy of the
     Second Report and Order and Notice of Proposed Rulemaking,
     including the IRFA, to the Chief Counsel for Advocacy of the Small
     Business Administration.

     FEDERAL COMMUNICATIONS COMMISSION

> Marlene H. Dortch

Secretary

**APPENDIX A**

**Parties Filing Comments To 2005 Further Notice**

**Of Proposed Rulemaking**

**[Comments]{.underline}**

Cingular Wireless LLC \
Consumer Electronics Retailers Coalition (CERC)\
RadioShack Corporation \
Research in Motion Limited 

**[Reply Comments]{.underline}**

# CompUSA The Hearing Industries Association (HIA) T-Mobile USA, Inc. {#compusa-the-hearing-industries-association-hia-t-mobile-usa-inc. .unnumbered}

**APPENDIX B**

**Proposed Rule In Joint Consensus Plan**

§ 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:

1\) For radio frequency interference: A minimum M3 rating as set forth
in the standard document "American National Standard for Methods of
Measurement of Compatibility between Wireless Communication Devices and
Hearing Aids," ASC C63™ ANSI C63.19-2006 (published June 12, 2006) or,
as hereinafter provided, ASC C63™ ANSI C63.19-2007 (published June 8,
2007) \-- available for purchase from the American National Standards
Institute, provided that grants of equipment authorization issued under
other versions of standard document ANSI C63.19 remain valid for hearing
aid compatibility purposes;

> \(2\) For inductive coupling: A minimum T3 rating as set forth in the
> standard document "American National Standard for Methods of
> Measurement of Compatibility between Wireless Communication Devices
> and Hearing Aids," ASC C63™ ANSI C63.19-2006 (published June 12, 2006)
> or, as hereinafter provided, ASC C63™ ANSI C63.19-2007 (published June
> 8, 2007) \-- available for purchase from the American National
> Standards Institute, provided that grants of equipment authorization
> issued under other versions of standard document ANSI C63.19 remain
> valid for hearing-aid compatibility purposes;

\(3\) For both radio frequency interference and inductive coupling only
ASC C63™ ANSI C63.19-2007 shall be used after January 1, 2010, for
obtaining a grant of equipment authorization;

> \(4\) Manufacturers must certify compliance with the test requirements
> and indicate the appropriate rating or ratings for the wireless phone
> as set forth in § 2.1033(d) of this chapter; and
>
> \(5\) All factual questions of whether a wireless phone meets the
> technical standard of this subsection shall be referred for resolution
> to the Chief, Office of Engineering and Technology, Federal
> Communications Commission, 445 12th Street SW, Washington, D.C. 20554.

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

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

\(i\) Ensure at least thirty-three (33) percent of its handset offerings
to service providers for each air interface offered comply with
§ 20.19(b)(1) not later than February 18, 2008; and

> \(ii\) Meet these requirements with respect to handsets that operate
> in United States bands set forth in § 20.19(a).
>
> Note: For purposes of determining whether the number of models offered
> meets the thirty-three percent requirement, the number of models that
> results when the total number of models offered in the United States
> by a manufacturer is multiplied by thirty-three percent shall be
> rounded down to the nearest whole number, except that when a
> manufacturer produces four to six models, the calculation shall be
> rounded up to the nearest whole number in determining whether the
> thirty-three percent requirement is met.
>
> \(iii\) Beginning in calendar year 2009, and for each year thereafter
> that it elects to produce a new model, offer a mix of new and existing
> models that comply with § 20.19(b)(1) according to the following
> requirements:

\(A\) For manufacturers that produce four or more total models per air
interface, at least one-half of the minimum required M3 or better models
shall be new models introduced during the calendar year;

> Note: For purposes of calculating the number of new models to be
> produced under the refresh requirement of § 20.19(c)(1)(iii)(A), the
> number determined by multiplying the total number of new HAC models
> offered in the United States by fifty percent shall be rounded up to
> the nearest whole number. See the *de minimus* exception in
> § 20.19(e).
>
> \(B\) For manufacturers that produce three total models per air
> interface, at least one new M3-or-better model shall be introduced
> every other calendar year; and,
>
> \(C\) If a manufacturer introduces no new models in a calendar year,
> no refresh of M3-or-better models shall be required.

\(2\) Each Tier 1 carrier must ensure that at least fifty (50) percent
of its 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, or
alternatively:

> \(i\) Ensure that at least eight (8) of its handset models for each
> air interface comply with § 20.19(b)(1) not later than February 18,
> 2008;

\(ii\) Ensure that at least nine (9) of its handset models for each air
interface comply with § 20.19(b)(1) by February 18, 2009;

> \(iii\) Ensure that at least ten (10) of its handset models for each
> air interface comply with § 20.19(b)(1) by February 18, 2010;

\(iv\) Ensure that at least ten (10) of its handset models for each air
interface comply with §20.19(b)(1) by February 18, 2011.

> \(3\) In meeting the requirements of § 20.19(c)(2), each Tier 1
> carrier must
>
> provide models from multiple tiers and offer for sale and make
> available in each
>
> retail store owned or operated by the carrier HAC handset models for
> consumers
>
> to test in the store.
>
> \(4\) \[Placeholder for all other (*e.g.,* Tier 2 and 3) carriers\]

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

> \(1\) Each manufacturer offering to service providers four (4) or more
> handsets in an air interface for use with public mobile services in
> the United States or imported for use in the United States must offer
> to service providers a minimum of two (2) T3 or better models
> compliant with § 20.19(b)(2) rated on the basis of ASC C63™ ANSI
> C63.19-2006 by February 18, 2008, or if the following is greater in
> any given year:

\(i\) Ensure that at least twenty (20) percent of its handset offerings
to service providers in that air interface comply with § 20.19(b)(2) not
later than February 18, 2009, provided that, of any such models
introduced during calendar year 2009, one model may be rated using ASC
C63™ ANSI C63.19-2006, and all other models introduced during that year
or subsequent years shall be rated using ASC C63™ ANSI C63.19-2007;

\(ii\) Ensure that at least twenty-five (25) percent of its handset
offerings to service providers in that air interface comply with
§ 20.19(b)(2) not later than February 18, 2010; and

> \(iii\) Ensure that at least thirty-three (33) percent of its handset
> offerings to service providers in that air interface comply with
> § 20.19(b)(2) not later than February 18, 2011.

Note: For purposes of determining whether the number of models offered
meets the percentage requirements of § 20.19(d)(1), the number of models
that results when the total number of models offered per air interface
in the United States by a manufacturer is multiplied by the specified
percentage shall be rounded down to the nearest whole number.

> \(2\) Each Tier 1 carrier must ensure at least thirty-three (33)
> percent of its handset offerings calculated based on the total number
> of unique digital wireless phone models the carrier offers nationwide
> for each air interface offered comply with § 20.19(b)(2) by February
> 18, 2008, or alternatively:
>
> \(i\) Ensure that at least three (3) of its handset models for each
> air interface comply with § 20.19(b)(2) by February 18, 2008;
>
> \(ii\) Ensure that at least five (5) of its handset models for each
> air interface comply with § 20.19(b)(2) by February 18, 2009;

\(iii\) Ensure that at least seven (7) of its handset models for each
air interface comply with § 20.19(b)(2) by February 18, 2010, and

> \(iv\) Ensure that at least ten (10) of its handset models for each
> air interface comply with § 20.19(b)(2) by February 18, 2011.
>
> \(3\) In meeting the requirements of § 20.19(d)(2), each Tier 1
> carrier must provide models from multiple tiers and offer for sale and
> make available in each retail store owned or operated by the carrier
> HAC handset models compliant with § 20.19(b)(2) for consumers to test
> in the store;

\(4\) \[Placeholder for all other (*e.g.,* Tier 2 and 3) carriers\]

(*e) De minimis* exception*.*

\(1\) Manufacturers or mobile service providers that offer two or fewer
digital wireless handsets in an air interface in the U. S. are exempt
from the requirements of this section in that air interface. Mobile
service providers that obtain handsets only from manufacturers that
offer two or fewer digital wireless phone models in an air interface in
the U. S. are likewise exempt from the requirements of this section in
that air interface.

> \(2\) Manufacturers or mobile service providers that offer three
> digital wireless handset models in an air interface must offer at
> least one compliant phone model in that air interface. Mobile service
> providers that obtain handsets only from manufacturers that offer
> three digital wireless phone models in an air interface in the U.S.
> are required to offer at least one compliant handset model in that air
> interface.

***(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 rating, as defined in
§ 20.19(b)(1)(2) on the packaging material of the handset. An
explanation of the ASC C63™ C63.19 rating system shall also be included
in the device user's manual or as an insert in the packaging material
for the handset.

**(g) *Reporting dates***. The annual reporting date for manufacturers
to report compliance with the requirements of this section shall be
November 30; the annual reporting date for carriers to report compliance
with the requirements of this section shall be May 30, provided that
Tier 1 carriers shall file their first such report on May 30, 2008, and
Tier 2 and 3 carriers shall file their first such report on May 30,
2009.

**(h) *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 six (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 of this chapter are to be followed.

**APPENDIX C**

**Initial Regulatory Flexibility Analysis**

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^222] the Federal Communications Commission (Commission) has
    prepared this Initial Regulatory Flexibility Analysis (IRFA) of the
    possible significant economic impact on a substantial number of
    small entities by the policies and rules considered in this Notice
    of Proposed Rulemaking, WT Docket No. 07-250.[^223] Written public
    comments are requested on this IRFA. Comments must be identified as
    responses to the IRFA and must be filed by the deadlines for
    comments on the Notice provided on page one of this Notice. The
    Commission will send a copy of this Notice, including this IRFA, to
    the Chief Counsel for Advocacy of the Small Business Administration
    (SBA).[^224] In addition, this Notice and IRFA (or summaries
    thereof) will be published in the Federal Register.[^225]

2.  Although Section 213 of the Consolidated Appropriations Act of 2000
    provides that the RFA shall not apply to the rules and competitive
    bidding procedures for frequencies in the 746-806 MHz Band,[^226]
    the Commission believes that it would serve the public interest to
    analyze the possible significant economic impact of the proposed
    policy and rule changes in this band on small entities. Accordingly,
    this IRFA contains an analysis of this impact in connection with all
    spectrum that falls within the scope of this Notice, including
    spectrum in the 746-806 MHz Band.

    A.  **Need for, and Objectives of, the Proposed Rules**

3.  In the Notice, the Commission reexamines existing hearing aid
    compatibility requirements to ensure that they will continue to be
    effective in an evolving marketplace of new technologies and
    services. The Commission undertakes this review in accordance with
    its commitment in the 2003 *Hearing Aid Compatibility Order* to
    initiate a new rulemaking proceeding to evaluate: "(1) whether to
    increase \[or\] decrease the 2008 requirement to provide 50 percent
    of phone models that comply with a U3[^227] rating; (2) whether to
    adopt \[hearing aid compatibility\] implementation benchmarks[^228]
    beyond 2008; and (3) whether to otherwise modify the \[hearing aid
    compatibility\] requirements."[^229] To assist in forming the basis
    for initiating this rulemaking, the Wireless Telecommunications
    Bureau (WTB), in WT Docket No. 06-203, recently released the *Staff
    Report*, which examines recent developments and includes several
    recommendations for measures to facilitate further implementation of
    the Commission's hearing aid compatibility requirements.[^230] The
    proposals set forth in the Notice draw upon recommendations proposed
    in the *Staff Report*.

4.  Several of these proposals, in turn, are based on an interconnected
    set of rule changes set forth in a consensus plan (Joint Consensus
    Plan) recently developed jointly by industry and representatives for
    the deaf and hard of hearing community. The specifics of the Joint
    Consensus Plan are contained in the Supplemental Comments of the
    Alliance for Telecommunications Industry Solutions (ATIS), which
    were submitted as part of the record in WT Docket No. 06-203.[^231]
    First, the Joint Consensus Plan proposes several changes to the
    deadlines and other provisions requiring service providers and
    manufacturers to make available certain types of hearing
    aid-compatible phones, including: (1) "provid\[ing\] Tier I carriers
    with an alternative to the 50 percent rule for M-rated phones"; (2)
    "increas\[ing\] the number of T3-or-better phones that Tier I
    carriers must make available"; (3) "requir\[ing\] manufacturers to
    offer thirty three (33) percent of wireless phones at the
    M3-or-better level"; and (4) requiring "each manufacturer not
    subject to the *de minimis* exception . . . \[to\] produce at least
    two or more T3-or-better handsets."[^232] These changes include new
    rules requiring manufacturers each year to include a certain number
    of new products among their hearing aid-compatible models, and
    requiring Tier I carriers to provide hearing aid-compatible models
    from multiple tiers of functionality.[^233] Second, the Joint
    Consensus Plan proposes a transition to phase-in the 2007 version of
    the ANSI C63.19 standard for hearing aid compatibility
    testing.[^234] Third, the Joint Consensus Plan proposes that service
    providers and manufacturers report regularly on the availability of
    products under updated criteria for information submissions.[^235]
    Finally, to further accessibility to hearing aid-compatible phones,
    the Joint Consensus Plan proposes other steps that the Commission
    should take to adequately address hearing aid compatibility of
    wireless handsets.[^236]

5.  Although the Notice tentatively concludes substantially to adopt new
    M3- and T3-rated handset deployment benchmarks through 2011, and a
    related requirement to offer handsets with different levels of
    functionality, for Tier I carriers only,[^237] it also seeks comment
    on the appropriate regime for smaller service providers. In
    addition, the Notice tentatively concludes to adopt new deployment
    benchmarks for all manufacturers, subject to a *de minimis*
    exception for certain manufacturers with small product lines.
    Moreover, the Commission also tentatively concludes that the
    following steps that might affect small businesses are needed to
    meet its objectives: (1) implement a "product refresh" rule for
    manufacturers; (2) adopt, after a suitable phase-in period, the use
    of a single version of the ANSI C63.19 standard, ANSI C63.19-2007;
    and (3) adopt new content and timelines for hearing aid
    compatibility reporting requirements. In the context of several of
    these tentative conclusions, the Commission requests comment on
    possible compliance requirements not included within the Joint
    Consensus Plan's framework. For example, the Commission seeks
    comment on the possibility of staggered handset deployment deadlines
    for different classes of service providers and manufacturers,
    additional reporting/outreach obligations, and other measures that
    may impact small entities. In addition, following upon the
    recommendations in the *Staff Report*, the Notice invites comments
    on new hearing aid compatibility issues implicated by recent
    developments relating to provision of Voice over Internet Protocol
    (VoIP) over wireless platforms, as well as "open platform" networks.
    The Commission is open to comment on what, if any, requirements it
    should, or should not, impose for small entities if it adopts new
    rules based on the proposals in the Notice.

6.  To promote compatibility between digital wireless telephones and
    hearing aids, this Notice could result in rule changes that, if
    adopted, would create new opportunities and obligations for several
    categories of wireless service providers, as well as manufacturers
    of wireless handsets. The Commission's hearing aid compatibility
    rules apply to providers of digital CMRS that "offer real-time,
    two-way switched voice or data service that is interconnected with
    the public switched network and utilize\[\] an in-network switching
    facility that enables the provider to reuse frequencies and
    accomplish seamless hand-offs of subscriber calls," as well as to
    manufacturers of wireless phones used in the delivery of such
    services.[^238] In this regard, the Commission determined earlier
    this year to extend hearing aid compatibility requirements to all
    services that meet these criteria, regardless of the particular band
    in which they operate, once applicable technical standards are
    established in the relevant bands.[^239] Accordingly, the rule
    changes in the Notice may affect service providers and equipment
    manufacturers in services for which technical standards both have
    and have not been established. In addition, as discussed above, the
    Notice requests comment on potential rule changes that may affect
    providers of VoIP applications over wireless technologies, as well
    as independent retailers and other third parties in the context of
    "open platform" networks.

7.  The Commission states that ensuring the availability of hearing
    aid-compatible handsets to hard of hearing consumers, as well as
    information about such handsets, remains a high priority. To the
    extent people who use hearing aids have difficulty finding a
    wireless mobile telephone that functions effectively with those
    devices because of interference or compatibility problems, the
    Commissions states that a continued expansion in the number and
    availability of hearing aid-compatible wireless telephones is
    warranted. It explains that its objective is to take account of
    changing market and technological conditions with appropriate new
    steps to ensure that hearing aid users will continue to benefit from
    the convenience and features offered by the newest wireless
    communications systems being provided to American consumers.

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B.  **Legal Basis**

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8.  The potential actions about which comment is sought in this Notice
    would be authorized pursuant to the authority contained in Sections
    4(i), 303(r), and 710 of the Communications Act of 1934, as amended,
    47 U.S.C. §§ 154(i), 303(r), and 610.

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

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9.  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 proposed rules, if adopted.[^240] The RFA generally
    defines the term "small entity" as having the same meaning as the
    terms "small business," "small organization," and "small
    governmental jurisdiction."[^241] In addition, the term "small
    business" has the same meaning as the term "small business concern"
    under the Small Business Act.[^242] A "small business concern" is
    one which: (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).[^243] To assist the Commission in analyzing the total number
    of potentially affected small entities, the Commission requests
    commenters to estimate the number of small entities that may be
    affected by any rule changes that might result from this Notice.

10. **Wireless Communications Services.** This service can be used for
    fixed, mobile, radiolocation, and digital audio broadcasting
    satellite uses in the 2305-2320 MHz and 2345-2360 MHz bands. The
    Commission defined "small business" for the wireless communications
    services (WCS) auction as an entity with average gross revenues of
    \$40 million for each of the three preceding years, and a "very
    small business" as an entity with average gross revenues of \$15
    million for each of the three preceding years.[^244] The SBA has
    approved these definitions.[^245] The Commission auctioned
    geographic area licenses in the WCS service. In the auction, which
    commenced on April 15, 1997 and closed on April 25, 1997, there were
    seven bidders that won 31 licenses that qualified as very small
    business entities, and one bidder that won one license that
    qualified as a small business entity.

11. **700 MHz Guard Bands Licenses.** In the *700 MHz Guard Bands
    Order*, the Commission adopted size standards for "small businesses"
    and "very small businesses" for purposes of determining their
    eligibility for special provisions such as bidding credits and
    installment payments.[^246] A small business in this service is an
    entity that, together with its affiliates and controlling
    principals, has average gross revenues not exceeding \$40 million
    for the preceding three years.[^247] Additionally, a "very small
    business" is an entity that, together with its affiliates and
    controlling principals, has average gross revenues that are not more
    than \$15 million for the preceding three years.[^248] SBA approval
    of these definitions is not required.[^249] An auction of 52 Major
    Economic Area (MEA) licenses for each of two spectrum blocks
    commenced on September 6, 2000, and closed on September 21,
    2000.[^250] Of the 104 licenses auctioned, 96 licenses were sold to
    nine bidders. Five of these bidders were small businesses that won a
    total of 26 licenses. A second auction of remaining 700 MHz Guard
    Bands licenses commenced on February 13, 2001, and closed on
    February 21, 2001. All eight of the licenses auctioned were sold to
    three bidders. One of these bidders was a small business that won a
    total of two licenses.[^251] Subsequently, in the *700 MHz Second
    Report and Order*, the Commission reorganized the licenses pursuant
    to an agreement among most of the licensees, resulting in a spectral
    relocation of the first set of paired spectrum block licenses, and
    an elimination of the second set of paired spectrum block licenses
    (many of which were already vacant, reclaimed by the Commission from
    Nextel).[^252] A single licensee that did not participate in the
    agreement was grandfathered in the initial spectral location for its
    two licenses in the second set of paired spectrum blocks.[^253]
    Accordingly, at this time there are 54 licenses in the 700 MHz Guard
    Bands.

12. **700 MHz Band Commercial Licenses.** There is 80 megahertz of
    non-Guard Band spectrum in the 700 MHz Band that is designated for
    commercial use: 698-757, 758-763, 776-787, and 788-793 MHz Bands.
    **With** one exception, the Commission adopted criteria for defining
    two groups of small businesses for purposes of determining their
    eligibility for bidding credits at auction. These two categories
    are: (1) "small business," which is defined as an entity that has
    attributed average annual gross revenues that do not exceed \$15
    million during the preceding three years; and (2) "very small
    business," which is defined as an entity with attributed average
    annual gross revenues that do not exceed \$40 million for the
    preceding three years.[^254] In Block C of the Lower 700 MHz Band
    (710-716 MHz and 740-746 MHz), which was licensed on the basis of
    734 Cellular Market Areas, the Commission adopted a third criterion
    for determining eligibility for bidding credits: an "entrepreneur,"
    which is defined as an entity that, together with its affiliates and
    controlling principals, has average gross revenues that are not more
    than \$3 million for the preceding three years.[^255] The SBA has
    approved these small size standards.[^256]

13. An auction of 740 licenses for Blocks C (710-716 MHz and 740-746
    MHz) and D (716-722 MHz) of the Lower 700 MHz Band commenced on
    August 27, 2002, and closed on September 18, 2002. Of the 740
    licenses available for auction, 484 licenses were sold to 102
    winning bidders. Seventy-two of the winning bidders claimed small
    business, very small business, or entrepreneur status and won a
    total of 329 licenses.[^257] A second auction commenced on May 28,
    2003, and closed on June 13, 2003, and included 256 licenses: five
    EAG licenses and 251 CMA licenses.[^258] Seventeen winning bidders
    claimed small or very small business status and won 60 licenses, and
    nine winning bidders claimed entrepreneur status and won 154
    licenses.[^259]

14. The remaining 62 megahertz of commercial spectrum is currently
    scheduled for auction on January 24, 2008. As explained above,
    bidding credits for all of these licenses will be available to
    "small businesses" and "very small businesses."

15. **Government Transfer Bands.** The Commission adopted small business
    size standards for the unpaired 1390-1392 MHz, 1670-1675 MHz, and
    the paired 1392-1395 MHz and 1432-1435 MHz bands.[^260]
    Specifically, with respect to these bands, the Commission defined an
    entity with average annual gross revenues for the three preceding
    years not exceeding \$40 million as a "small business," and an
    entity with average annual gross revenues for the three preceding
    years not exceeding \$15 million as a "very small business."[^261]
    SBA has approved these small business size standards for the
    aforementioned bands.[^262] Correspondingly, the Commission adopted
    a bidding credit of 15 percent for "small businesses" and a bidding
    credit of 25 percent for "very small businesses."[^263] This bidding
    credit structure was found to have been consistent with the
    Commission's schedule of bidding credits, which may be found at
    Section 1.2110(f)(2) of the Commission's rules.[^264] The Commission
    found that these two definitions will provide a variety of
    businesses seeking to provide a variety of services with
    opportunities to participate in the auction of licenses for this
    spectrum and will afford such licensees, who may have varying
    capital costs, substantial flexibility for the provision of
    services.[^265] The Commission noted that it had long recognized
    that bidding preferences for qualifying bidders provide such bidders
    with an opportunity to compete successfully against large,
    well-financed entities.[^266] The Commission also noted that it had
    found that the use of tiered or graduated small business definitions
    is useful in furthering its mandate under Section 309(j) to promote
    opportunities for and disseminate licenses to a wide variety of
    applicants.[^267] An auction for one license in the 1670-1674 MHz
    band commenced on April 30, 2003 and closed the same day. One
    license was awarded. The winning bidder was not a small entity.

16. **Advanced Wireless Services.** In the *AWS-1 Report and Order*, the
    Commission adopted rules that affect applicants who wish to provide
    service in the 1710-1755 MHz and 2110-2155 MHz bands.[^268] The
    Commission did not know precisely the type of service that a
    licensee in these bands might seek to provide. Nonetheless, the
    Commission anticipated that the services that will be deployed in
    these bands may have capital requirements comparable to those in the
    broadband Personal Communications Service (PCS), and that the
    licensees in these bands will be presented with issues and costs
    similar to those presented to broadband PCS licensees. Further, at
    the time the broadband PCS service was established, it was similarly
    anticipated that it would facilitate the introduction of a new
    generation of service. Therefore, the *AWS-1 Report and Order*
    adopts the same small business size definition that the Commission
    adopted for the broadband PCS service and that the SBA
    approved.[^269] In particular, the *AWS-1 Report and Order* defines
    a "small business" as an entity with average annual gross revenues
    for the preceding three years not exceeding \$40 million, and a
    "very small business" as an entity with average annual gross
    revenues for the preceding three years not exceeding \$15 million.
    The *AWS-1 Report and Order* also provides small businesses with a
    bidding credit of 15 percent and very small businesses with a
    bidding credit of 25 percent.

17. **Broadband Radio Service and Educational Broadband Service.**
    Broadband Radio Service ("BRS"), formerly known as Multipoint
    Distribution Service ("MDS"),[^270] and Educational Broadband
    Service ("EBS"), formerly known as Instructional Television Fixed
    Service ("ITFS"),[^271] use frequencies at 2150-2162 and 2500-2690
    MHz to transmit video programming and provide broadband services to
    residential subscribers.[^272] These services, collectively referred
    to as "wireless cable," were originally designed for the delivery of
    multichannel video programming, similar to that of traditional cable
    systems, but over the past several years licensees have focused
    their operations instead on providing two-way high-speed Internet
    access services.[^273] We estimate that the number of wireless cable
    subscribers is approximately 100,000, as of March 2005. As described
    below, the SBA small business size standard for the broad census
    category of Cable and Other Program Distribution, which consists of
    such entities generating \$13.5 million or less in annual receipts,
    appears applicable to MDS and ITFS.[^274] Other standards also
    apply, as described.

18. The Commission has defined small MDS (now BRS) entities in the
    context of Commission license auctions. In the 1996 MDS
    auction,[^275] the Commission defined a small business as an entity
    that had annual average gross revenues of less than \$40 million in
    the previous three calendar years.[^276] This definition of a small
    entity in the context of MDS auctions has been approved by the
    SBA.[^277] In the MDS auction, 67 bidders won 493 licenses. Of the
    67 auction winners, 61 claimed status as a small business. At this
    time, the Commission estimates that of the 61 small business MDS
    auction winners, 48 remain small business licensees. In addition to
    the 48 small businesses that hold BTA authorizations, there are
    approximately 392 incumbent MDS licensees that have gross revenues
    that are not more than \$40 million and are thus considered small
    entities.[^278] MDS licensees and wireless cable operators that did
    not receive their licenses as a result of the MDS auction fall under
    the SBA small business size standard for Cable and Other Program
    Distribution. Information available to us indicates that there are
    approximately 850 of these licensees and operators that do not
    generate revenue in excess of \$13.5 million annually. Therefore, we
    estimate that there are approximately 850 small entity MDS (or BRS)
    providers, as defined by the SBA and the Commission's auction rules.

19. Educational institutions are included in this analysis as small
    entities; however, the Commission has not created a specific small
    business size standard for ITFS (now EBS).[^279] We estimate that
    there are currently 2,032 EBS licensees, and all but 100 of the
    licenses are held by educational institutions. Thus, we estimate
    that at least 1,932 EBS licensees are small entities.

20. **Cellular Licensees.** The SBA has developed a small business size
    standard for small businesses in the category "Wireless
    Telecommunications Carriers (except satellite)."[^280] Under that
    SBA category, a business is small if it has 1,500 or fewer
    employees.[^281] For the census category of "Cellular and Other
    Wireless Telecommunications," Census Bureau data for 2002 show that
    there were 1,397 firms in this category that operated for the entire
    year.[^282] Of this total, 1,378 firms had employment of 999 or
    fewer employees, and 19 firms had employment of 1,000 employees or
    more.[^283] Thus, under this category and size standard, the
    majority of firms can be considered small.

21. **Broadband Personal Communications Service.** The broadband
    Personal Communications Service (PCS) spectrum is divided into six
    frequency blocks designated A through F, and the Commission has held
    auctions for each block. The Commission has created a small business
    size standard for Blocks C and F as an entity that has average gross
    revenues of less than \$40 million in the three previous calendar
    years.[^284] For Block F, an additional small business size standard
    for "very small business" was added and is defined as an entity
    that, together with its affiliates, has average gross revenues of
    not more than \$15 million for the preceding three calendar
    years.[^285] These small business size standards, in the context of
    broadband PCS auctions, have been approved by the SBA.[^286] No
    small businesses within the SBA-approved small business size
    standards bid successfully for licenses in Blocks A and B. There
    were 90 winning bidders that qualified as small entities in the
    Block C auctions. A total of 93 "small" and "very small" business
    bidders won approximately 40 percent of the 1,479 licenses for
    Blocks D, E, and F.[^287] On March 23, 1999, the Commission
    reauctioned 155 C, D, E, and F Block licenses; there were 113 small
    business winning bidders.[^288] On January 26, 2001, the Commission
    completed the auction of 422 C and F PCS licenses in Auction
    35.[^289] Of the 35 winning bidders in this auction, 29 qualified as
    "small" or "very small" businesses. Subsequent events concerning
    Auction 35, including judicial and agency determinations, resulted
    in a total of 163 C and F Block licenses being available for grant.

22. **Specialized Mobile Radio.** The Commission awards "small entity"
    bidding credits in auctions for Specialized Mobile Radio (SMR)
    geographic area licenses in the 800 MHz and 900 MHz bands to firms
    that had revenues of no more than \$15 million in each of the three
    previous calendar years.[^290] The Commission awards "very small
    entity" bidding credits to firms that had revenues of no more than
    \$3 million in each of the three previous calendar years.[^291] The
    SBA has approved these small business size standards for the 900 MHz
    Service.[^292] The Commission has held auctions for geographic area
    licenses in the 800 MHz and 900 MHz bands. The 900 MHz SMR auction
    began on December 5, 1995, and closed on April 15, 1996. Sixty
    bidders claiming that they qualified as small businesses under the
    \$15 million size standard won 263 geographic area licenses in the
    900 MHz SMR band. The 800 MHz SMR auction for the upper 200 channels
    began on October 28, 1997, and was completed on December 8, 1997.
    Ten bidders claiming that they qualified as small businesses under
    the \$15 million size standard won 38 geographic area licenses for
    the upper 200 channels in the 800 MHz SMR band.[^293] A second
    auction for the 800 MHz band was held on January 10, 2002 and closed
    on January 17, 2002 and included 23 BEA licenses. One bidder
    claiming small business status won five licenses.[^294]

23. The auction of the 1,050 800 MHz SMR geographic area licenses for
    the General Category channels began on August 16, 2000, and was
    completed on September 1, 2000. Eleven bidders won 108 geographic
    area licenses for the General Category channels in the 800 MHz SMR
    band qualified as small businesses under the \$15 million size
    standard. In an auction completed on December 5, 2000, a total of
    2,800 Economic Area licenses in the lower 80 channels of the 800 MHz
    SMR service were sold. Of the 22 winning bidders, 19 claimed "small
    business" status and won 129 licenses. Thus, combining all three
    auctions, 40 winning bidders for geographic licenses in the 800 MHz
    SMR band claimed status as small business.

24. In addition, there are numerous incumbent site-by-site SMR licensees
    and licensees with extended implementation authorizations in the 800
    and 900 MHz bands. The Commission does not know how many firms
    provide 800 MHz or 900 MHz geographic area SMR pursuant to extended
    implementation authorizations, nor how many of these providers have
    annual revenues of no more than \$15 million, or have no more than
    1,500 employees. One firm has over \$15 million in revenues. The
    Commission assumes, for purposes of this analysis, that all of the
    remaining existing extended implementation authorizations are held
    by small entities, as that small business size standard is
    established by the SBA.

25. **Rural Radiotelephone Service.** The Commission uses the SBA
    definition applicable to Wireless Telecommunications Carriers
    (except satellite)," *i.e.*, an entity employing no more than 1,500
    persons.[^295] There are approximately 1,000 licensees in the Rural
    Radiotelephone Service, and the Commission estimates that there are
    1,000 or fewer small entity licensees in the Rural Radiotelephone
    Service that may be affected by the rules and policies adopted
    herein.

26. **Air-Ground Radiotelephone Service.** The Commission uses the SBA
    definition applicable to Wireless Telecommunications Carriers
    (except satellite)," *i.e.*, an entity employing no more than 1,500
    persons.[^296] There are approximately 100 licensees in the
    Air-Ground Radiotelephone Service, and the Commission estimates that
    almost all of them qualify as small entities under the SBA
    definition.

27. **Offshore Radiotelephone Service.** This service operates on
    several ultra high frequency (UHF) TV broadcast channels that are
    not used for TV broadcasting in the coastal area of the states
    bordering the Gulf of Mexico. At present, there are approximately 55
    licensees in this service. The Commission uses the SBA definition
    applicable to Wireless Telecommunications Carriers (except
    satellite)," *i.e.*, an entity employing no more than 1,500
    persons.[^297] The Commission is unable at this time to estimate the
    number of licensees that would qualify as small entities under the
    SBA definition. The Commission assumes, for purposes of this
    analysis, that all of the 55 licensees are small entities, as that
    term is defined by the SBA.

28. **Mobile Satellite Service Carriers.** Neither the Commission nor
    the U.S. Small Business Administration has developed a small
    business size standard specifically for mobile satellite service
    licensees. The appropriate size standard is therefore the SBA
    standard for Satellite Telecommunications, which provides that such
    entities are small if they have \$13.5 million or less in annual
    revenues.[^298] Currently, the Commission's records show that there
    are 31 entities authorized to provide voice and data MSS in the
    United States. We do not have sufficient information to determine
    which, if any, of these parties are small entities. The Commission
    notes that small businesses are not likely to have the financial
    ability to become MSS system operators because of high
    implementation costs, including construction of satellite space
    stations and rocket launch, associated with satellite systems and
    services. Still, we request comment on the number and identity of
    small entities that would be significantly impacted by the proposed
    rule changes.

29. **Wireless Communications Equipment Manufacturers.** The SBA has
    established a small business size standard for wireless
    communications equipment manufacturers. Under the standard, firms
    are considered small if they have 750 or fewer employees.[^299]
    Census Bureau data for 1997 indicates that, for that year, there
    were a total of 1,215 establishments[^300] in this category.[^301]
    Of those, there were 1,150 that had employment under 500, and an
    additional 37 that had employment of 500 to 999. The Commission
    estimates that the majority of wireless communications equipment
    manufacturers are small businesses.

30. **Radio, Television, and Other Electronics Stores**. "This U.S.
    industry comprises: (1) establishments known as consumer electronics
    stores primarily engaged in retailing a general line of new
    consumer-type electronic products; (2) establishments specializing
    in retailing a single line of consumer-type electronic products
    (except computers); or (3) establishments primarily engaged in
    retailing these new electronic products in combination with repair
    services."[^302] The SBA has developed a small business size
    standard for this category of retail store; that size standard is
    \$7.5 million or less in annual revenues.[^303] According to Census
    Bureau data for 1997, there were 8,328 firms in this category that
    operated for the entire year.[^304] Of these, 8,088 firms had annual
    sales of under \$5 million, and an additional 132 had annual sales
    of \$5 million to \$9,999,999. Therefore, the majority of these
    businesses may be considered to be small.[^305]

31. **Internet Service Providers***.* In the Notice, the Commission
    seeks comment on whether to extend hearing aid compatibility
    requirements to entities offering access to VoIP applications over
    WiFi[^306] and other wireless technologies that may fall outside the
    definition of CMRS and/or the criteria in Section 20.19(a), such as
    those operating on networks that do not employ "an in-network
    switching facility that enables the provider to reuse frequencies
    and accomplish seamless hand-offs." Such applications may be
    provided, for example, by Internet Service Providers (ISPs). ISPs
    are Internet Publishing and Broadcasting and Web Search
    Portals[^307] that provide clients access to the Internet and
    generally provide related services such as web hosting, web page
    designing, and hardware or software consulting related to Internet
    connectivity. To gauge small business prevalence for these Internet
    Publishing and Broadcasting and Web Search Portals, we must,
    however, use current census data that are based on the previous
    category of Internet Service Providers and its associated size
    standard. That standard was: all such firms having \$23.5 million or
    less in annual receipts. Accordingly, to use data available to us
    under the old standard and Census Bureau data for 2002, there were
    2,529 firms in this category that operated for the entire year.
    [^308] Of these, 2,437 firms had annual receipts of under \$10
    million, and an additional 47 firms had receipts of between \$10
    million and \$24,999,999. Consequently, we estimate that the
    majority of these firms are small entities that may be affected by
    our action.

32. **All Other Information Services**. "This industry comprises
    establishments primarily engaged in providing other information
    services (except new syndicates and libraries and archives)."[^309]
    VoIP services over wireless technologies could be provided by
    entities that provide other services such as email, online gaming,
    web browsing, video conferencing, instant messaging, and other,
    similar IP-enabled services. The SBA has developed a small business
    size standard for this category; that size standard is \$6.5 million
    or less in average annual receipts.[^310] According to Census Bureau
    data for 1997, there were 195 firms in this category that operated
    for the entire year.[^311] Of these, 172 had annual receipts of
    under \$5 million, and an additional nine firms had receipts of
    between \$5 million and \$9,999,999. Consequently, we estimate that
    the majority of these firms are small entities that may be affected
    by our action.

33. **Part 15 Device Manufacturers**. Manufacturers of unlicensed
    wireless devices may also become subject to requirements in this
    proceeding for their devices used to provide VoIP applications. The
    Commission has not developed a definition of small entities
    applicable to unlicensed communications devices manufacturers.
    Therefore, we will utilize the SBA definition applicable to Radio
    and Television Broadcasting and Wireless Communications Equipment
    Manufacturing. The Census Bureau defines this category as follows:
    "This industry comprises establishments primarily engaged in
    manufacturing radio and television broadcast and wireless
    communications equipment. Examples of products made by these
    establishments are: transmitting and receiving antennas, cable
    television equipment, GPS equipment, pagers, cellular phones, mobile
    communications equipment, and radio and television studio and
    broadcasting equipment."[^312] The SBA has developed a small
    business size standard for Radio and Television Broadcasting and
    Wireless Communications Equipment Manufacturing, which is: all such
    firms having 750 or fewer employees.[^313] According to Census
    Bureau data for 2002, there were a total of 1,041 establishments in
    this category that operated for the entire year.[^314] Of this
    total, 1,010 had employment of under 500, and an additional 13 had
    employment of 500 to 999.[^315] Thus, under this size standard, the
    majority of firms can be considered small.

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

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34. The Commission tentatively concludes that it will adopt several
    reporting, recordkeeping, and other compliance requirements which
    could affect small entities. For example, as discussed in Section A
    above, manufacturers and service providers have filed regular
    reports with the Commission since 2003 detailing their hearing aid
    compatibility efforts. In order to address shortcomings that have
    been observed in the existing reports and to render future reports
    as transparent and useful as possible for consumers, industry, and
    Commission staff responsible for helping to ensure that the
    Commission's hearing aid compatibility requirements are fully
    implemented, the Commission tentatively concludes to adopt new
    content requirements, as recommended in the *Staff Report* and
    proposed in the Joint Consensus Plan.[^316]

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

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35. The RFA requires an agency to describe any significant, specifically
    small business alternatives that it has considered in reaching its
    proposed 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) and exemption
    from coverage of the rule, or any part thereof, for small
    entities."[^317]

36. The Commission seeks comment generally on the effect the rule
    changes considered in this Notice would have on small entities, on
    whether alternative rules should be adopted for small entities in
    particular, and on what effect such alternative rules would have on
    those entities. The Commission invites comment on ways in which it
    can achieve its goals while minimizing the burden on small wireless
    service providers, equipment manufacturers, and other entities.

37. For example, the Commission specifically considers handset
    deployment benchmark alternatives for small businesses.[^318] In
    this regard, the Commission requests comment regarding the
    appropriate benchmarks and deadlines for Tier II and Tier III
    carriers,[^319] resellers, mobile virtual network operators (MVNOs),
    and other categories of smaller service providers. The Commission
    notes that in the past numerous Tier II and Tier III carriers have
    requested, and many have been granted, extension of compatible
    handset deployment deadlines because they were unable timely to
    obtain compliant handsets in sufficient quantities from
    manufacturers. The Commission states that Tier II and Tier III
    carriers may have more difficulty than Tier I carriers in obtaining
    handsets due to market realities. Accordingly, the Commission seeks
    comment on the alternative of whether the handset deployment
    benchmarks proposed for Tier I carriers are appropriate for smaller
    carriers, and on whether the deadlines for those entities in
    particular should be later than those applicable to manufacturers.
    To consider the economic impact on small entities, the Commission
    asks commenters to address whether there is anything inherent in the
    characteristics of smaller service providers that would prevent them
    from meeting either the RF interference or inductive
    coupling-capable handset numbers and percentages set out for Tier I
    carriers. The Commission asks commenters to discuss with specificity
    any alternative requirements or schedules that they propose for
    these types of service providers, and the reasons for those
    alternatives.

38. The Notice also considers the alternative of delayed reporting
    obligations for non-Tier I carriers, which includes small entities.
    The Notice seeks comment on the appropriate reporting timelines for
    Tier II and III carriers, including the alternative of delaying
    their next reports for a period of 18 months to two years from their
    reports that will be submitted in November 2007, versus the
    alternative of whether they should instead be held to the same
    schedule as Tier I carriers in order to provide a steady source of
    information to consumers and to the Commission. In this context, the
    Commission considers the extent of the burdens to Tier II and III
    carriers that would be avoided by postponing their first reports as
    proposed under the Joint Consensus Plan. For example, given that
    Tier II and III carriers have already been filing reports regularly,
    the Commission seeks comment on the extent of any inconvenience or
    costs that would be avoided by postponing their first reports as
    proposed under the Joint Consensus Plan, balanced against the extent
    of information that would be lost by introducing a gap of 18 months
    or more in their reporting. Finally, the Notice asks commenters to
    address whether the delayed reporting deadline alternative for Tier
    II and III carriers should depend on what deployment deadlines
    (described above) are adopted.

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F.  **Federal Rules that May Duplicate, Overlap, or Conflict with the
    Proposed Rules**

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39. None.

[^1]: *See* Section 68.4(a) of the Commission's Rules Governing Hearing
    Aid-Compatible Telephones, WT Docket No. 01-309, *Report and Order*,
    18 FCC Rcd 16753, 16755 ¶ 4 (2003); *Erratum*, 18 FCC Rcd 18047
    (2003) (*Hearing Aid Compatibility Order*).

[^2]: *See* Section 68.4(a) of the Commission's Rules Governing Hearing
    Aid-Compatible Telephones, WT Docket No. 01-309, *Order on
    Reconsideration and Further Notice of Proposed Rulemaking*, 20 FCC
    Rcd 11221 (2005) (*Hearing Aid Compatibility Reconsideration Order
    and Further Notice)*.

[^3]: *See* *Hearing Aid Compatibility Order*, 18 FCC Rcd at 16782-83 ¶
    74.

[^4]: *Id.*

[^5]: *See* Section 68.4(a) of the Commission's Rules Governing Hearing
    Aid-Compatible Telephones, WT Docket No. 01-309, WT Docket No.
    06-203, *Report on the Status of Implementation of the Commission's
    Hearing Aid Compatibility Requirements*, DA 07-4151 (WTB rel. Oct.
    5, 2007) (*Staff Report*). In November 2006, WTB opened this docket,
    seeking comment from the public on issues that should be addressed
    in the staff report. Wireless Telecommunications Bureau Seeks
    Comments on Topics to be Addressed in Hearing Aid Compatibility
    Report, *Public Notice,* 21 FCC Rcd 13136 (2006) (*Staff Report
    Public Notice)*. Comments are summarized in the *Staff Report.*

[^6]: *See infra* Appendix B (containing changes to Section 20.19 of the
    Commission's rules proposed in Joint Consensus Plan); *see also*
    Letter of ATIS in WT Docket No. 06-203 (filed Oct. 3, 2007)
    (clarifying text of proposed Section 20.19(c)(1)(iii)(B)).

[^7]: *See* Supplemental Comments of ATIS in WT Docket No. 06-203 (filed
    June 25, 2007) (Joint Consensus Plan).

[^8]: Joint Consensus Plan at 3.

[^9]: *Id*.

[^10]: *See* 47 C.F.R. § 20.19(c), (d).

[^11]: On June 25, 2007, the American National Standards Institute
    Accredited Standards Committee C63 filed a petition seeking adoption
    of the 2007 revision of the ANSI C63.19 technical standard in place
    of the 2001, 2005 draft, and 2006 versions of the technical
    standard. *See* Petition of American National Standards Institute
    (ANSI) Accredited Standards Committee C63 (EMC) - ANSI ASC C63 filed
    on June 25, 2007, in WT Docket No. 01-309 (ANSI Petition).

[^12]: *See* Joint Consensus Plan at 15; *see also id*. at 15-16
    (stating "\[a\]s a result, all elements of this proposal, regardless
    of how small, are critical to its success").

[^13]: *See* *generally* *Hearing Aid Compatibility Order*, 18 FCC Rcd
    16753.

[^14]: *See* Pub. L. No. 100-394, 102 Stat. 976 (1988), codified at 47
    U.S.C. § 610.

[^15]: *See Hearing Aid Compatibility Reconsideration Order*, 20 FCC Rcd
    at 11208-09 ¶¶ 26-27.

[^16]: 47 C.F.R. § 20.19(a); *see* *also* In the Matter of Service Rules
    for the 698-746, 747-762 and 777-792 MHz Bands, WT Docket 06-150,
    *Report and Order and Further Notice of Proposed Rulemaking*, 22 FCC
    Rcd 8064, 8117-18 ¶ 142 (2007) (*700 MHz Service Report and
    Order*)*.* CMRS is defined as mobile service that is provided for
    profit, interconnected, and available to the public. 47 C.F.R. §
    20.3; *see* 47 U.S.C. § 332(d)(1). We note that telephones used with
    public mobile services, as well as those used with private radio
    services, are exempt from the general statutory requirement that all
    telephones meet hearing aid compatibility standards. 47 U.S.C. §
    610(b)(2)(A); *see also* 47 C.F.R. § 68.4. In 1994, Congress amended
    Section 332 of the Communications Act, replacing the public mobile
    service and private radio service categories with CMRS and private
    mobile \[radio\] service (PMRS). *See Hearing Aid Compatibility
    Order*, 18 FCC Rcd at 16764-65 ¶ 26. "Public mobile service" is
    defined to include certain services covered under Part 22 of our
    rules. 47 U.S.C. § 610(b)(4)(B); 47 C.F.R. § 68.3.

[^17]: *See* 47 C.F.R. § 20.19(b); *700 MHz Service Report and Order*,
    22 FCC Rcd at 8119 ¶¶ 145-147. The existence of an established,
    applicable technical standard is a statutory requirement for
    imposing hearing aid compatibility requirements. *See* 47 U.S.C. §
    610.

[^18]: *700 MHz Service Report and Order,* 22 FCC Rcd 8117-20 ¶¶
    142-150.

[^19]: *Id.* at 8119-20 ¶¶ 148-150. Specifically, we established a
    24-month timetable for interested stakeholders to develop standards
    in these bands. *See id.* We stated that once the appropriate
    technical standards are established, the Commission would initiate a
    further proceeding to establish a specific timetable for deployment
    of hearing aid-compatible handsets for services in the relevant
    bands. *Id.* at 8119 ¶ 148.

[^20]: *See Hearing Aid Compatibility Order*, 18 FCC Rcd at 16780 ¶¶
    65-66; 47 C.F.R. § 20.19(c), (d).

[^21]: The *Hearing Aid Compatibility Order* described acoustic coupling
    as follows:

    > 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.

    *Hearing Aid Compatibility Order*, 18 FCC Rcd at 16763 ¶ 22.

[^22]: 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.

[^23]: *See* 47 C.F.R. § 20.19(b)(1)-(2).

[^24]: *See Hearing Aid Compatibility Order*, 18 FCC Rcd at 16776 ¶ 55.

[^25]: *See* Wireless Telecommunications Bureau and Office of
    Engineering and Technology Clarify Use of Revised Wireless Phone
    Hearing Aid Compatibility Standard, *Public Notice*, 21 FCC Rcd 6384
    (WTB/OET 2006).

[^26]: *See Hearing Aid Compatibility Order*, 18 FCC Rcd at 16779 ¶ 63.

[^27]: *See id.*

[^28]: *See id.* at 16780 ¶ 65. The term air interface refers to the
    system that ensures compatibility between mobile radio service
    equipment, such as handsets, and the service provider's base
    stations. Currently, the leading air interfaces include Code
    Division Multiple Access (CDMA), Global System for Mobile
    Communications (GSM), Integrated Dispatch Enhanced Network (iDEN),
    Time Division Multiple Access (TDMA) and Wideband Code Division
    Multiple Access (WCDMA). We note that WCDMA is also known as
    Universal Mobile Telecommunications System (UMTS).

[^29]: *See id.*; 47 C.F.R. § 20.19(b)(1), (c)(1)-(3). The 2001 version
    of ANSI Standard C63.19, which the Commission adopted in the
    *Hearing Aid Compatibility Order*, used a "U" nomenclature for RF
    interference reduction, and this nomenclature is referenced in
    Section 20.19 of the Commission's rules. Subsequently, the 2006
    version of this standard substituted the "M" nomenclature. For
    purposes of clarity, we will use the "M" nomenclature throughout
    this item when referring to RF interference reduction ratings,
    unless referring to specific text that uses the "U" nomenclature.

[^30]: *See Hearing Aid Compatibility Order*, 18 FCC Rcd at 16780 ¶ 65;
    47 C.F.R. § 20.19(b)(2), (d). The 2006 version of ANSI Standard
    C63.19 substituted "T" nomenclature for the "UT" terminology that
    was used in the 2001 version of the standard. For purposes of
    clarity, we will use the "T" terminology throughout this item when
    referring to inductive coupling compatibility ratings.

[^31]: *See* Section 68.4(a) of the Commission's Rules Governing Hearing
    Aid-Compatible Telephones, Cingular Wireless LLC Petition for Waiver
    of Section 20.19(c)(3)(i)(A) of the Commission's Rules, *Memorandum
    Opinion and Order*, WT Docket No. 01-309, 20 FCC Rcd 15108, 15115 ¶
    17 (2005) (*Dual-Band GSM Waiver Order*) (Commission permitted
    handset manufacturers and service providers offering dual-band GSM
    wireless handsets operating in both the 850 MHz and 1900 MHz bands
    additional time, until August 1, 2006, for making available handsets
    with a U3 (*i.e.,* M3) or higher rating in both bands).

[^32]: *See* *Hearing Aid Compatibility Order*, 18 FCC Rcd at 16783 ¶
    75; 47 C.F.R. § 20.19(b)(3).

[^33]: *See* 47 C.F.R. § 20.19(c)-(d).

[^34]: The four (formerly six) nationwide CMRS carriers, AT&T Services,
    Inc., Verizon Wireless, Sprint Nextel, and T-Mobile USA are
    considered Tier I carriers. *See* Revision of the Commission's Rules
    to Ensure Compatibility with Enhanced 911 Emergency Calling Systems,
    Phase II Compliance Deadlines for Non-Nationwide CMRS Carriers,
    *Order to Stay*, 17 FCC Rcd 14841, 14843 ¶ 7 (2002) (*Non-Nationwide
    Carriers Order*).

[^35]: 47 C.F.R. § 20.19(c).

[^36]: 47 C.F.R. § 20.19(e)(1)-(2) .

[^37]: *See* *Hearing Aid Compatibility Order*, 18 FCC Rcd at 16787 ¶¶
    89-91.

[^38]: *See* 47 C.F.R. § 20.19(f).

[^39]: *See* *Hearing Aid Compatibility Order*, 18 FCC Rcd at 16782-83 ¶
    74.

[^40]: *Id*.

[^41]: The Commission modified the preliminary handset deployment
    benchmark specific to Tier I wireless carriers to provide greater
    regulatory certainty, while simultaneously ensuring a broad array of
    choices for persons with hearing disabilities who seek to purchase
    hearing aid-compatible wireless phones. *See* *Hearing Aid
    Compatibility Reconsideration Order and FNPRM,* 20 FCC Rcd at
    11208-09 ¶¶ 26-27.

[^42]: *See* *id.* at 11241 ¶ 44; *see also* 47 U.S.C. § 610(f).

[^43]: *Hearing Aid Compatibility Reconsideration Order and Further
    Notice*, 20 FCC Rcd at 11241 ¶ 44.

[^44]: *See id*. at 11248-49 ¶¶ 62-65.

[^45]: Party names and short forms are listed in Appendix A.

[^46]: *See, e.g.*, Cingular Comments at 1; RadioShack Comments at 4-5;
    T-Mobile Reply Comments at 3.

[^47]: HIA Reply Comments at 2.

[^48]: *See* Research in Motion Comments at 1-2; Cingular Comments at 4.

[^49]: *See* *Hearing Aid Compatibility Order*, 18 FCC Rcd at 16782-83 ¶
    74.

[^50]: *Staff Report Public Notice,* 21 FCC Rcd 13136.

[^51]: *See Staff Report,* Appendix.

[^52]: Wireless VoIP refers to VoIP service provided over wireless
    networks, including cellular system architecture networks as well as
    wireless networks utilizing WiFi and WiMax technologies. *See infra*
    Section IV.E. WiFi (Wireless Fidelity) is a wireless technology that
    is based on the Institute of Electrical and Electronics Engineers
    (IEEE) 802.11 standards. WiMAX (Worldwide Interoperability for
    Microwave Access) is a wireless technology that is based on the IEEE
    802.16 standards.

[^53]: *See* *Staff Report* at ¶ 86.

[^54]: *Id*.

[^55]: Joint Consensus Plan at 14.

[^56]: *Id*. at 4, 9 n.14.

[^57]: *Id*. at 4, 12.

[^58]: *Id*. at 4. In its separate petition, ANSI states that the 2007
    standard includes further improvements that have been made to the
    technical standard to reflect changes in technology, and
    efficiencies and improvements in testing procedures. *See* ANSI
    Petition at 2.

[^59]: Joint Consensus Plan at 4.

[^60]: *See infra* ¶ 86 (seeking comment on *inter alia* a further
    review of hearing aid compatibility rules in 2010).

[^61]: The one exception is the proposal in the Joint Consensus Plan for
    delaying reporting requirements for Tier II and III carriers. *See
    infra* ¶ 70. Tier II carriers are non-nationwide wireless radio
    service providers with more than 500,000 subscribers. Tier III
    carriers are non-nationwide wireless radio service providers with
    500,000 or fewer subscribers. *See* *Non-Nationwide Carriers Order*,
    17 FCC Rcd at 14847 ¶¶ 22-24.

[^62]: 47 C.F.R. § 20.19(c), (d).

[^63]: *Hearing Aid Compatibility Reconsideration Order and Further
    Notice*, 20 FCC Rcd at 11239 ¶ 39.

[^64]: *Id*. at 11248-49 ¶¶ 62-65.

[^65]: 47 U.S.C. § 610(a).

[^66]: *Hearing Aid Compatibility Reconsideration Order and Further
    Notice*, 20 FCC Rcd at 11248 ¶ 63.

[^67]: *Id.* at 11249 ¶¶ 62-65.

[^68]: *Id.*

[^69]: 47 U.S.C. § 217.

[^70]: 47 U.S.C. § 610(b).

[^71]: *Hearing Aid Compatibility Reconsideration Order and Further
    Notice*, 20 FCC Rcd at 11249 ¶ 64.

[^72]: Cingular Comments at 1; Radio Shack Comments at 4-5.

[^73]: *See* Radio Shack Comments at 9 (citing *Am'n Library Ass'n v.
    FCC*, 406 F.3d 689 (D.C. Cir. 2005)); *see also* CERC Comments at 4
    (stating that the Commission has, "at best," power to remove a
    product from the market, which is a "far cry" from regulating the
    stocking, marketing and merchandising choices of retailers with
    respect to products not recalled from commerce); CompUSA Reply
    Comments at 2-3.

[^74]: *See* Cingular Comments at 2; CompUSA Reply Comments at 2.

[^75]: T-Mobile Comments at 7.

[^76]: Radio Shack Comments at 16.

[^77]: CERC Comments at 7.

[^78]: HIA Reply Comments at 2.

[^79]: 47 U.S.C. § 610(a).

[^80]: HIA Reply Comments at 3. HIA notes that the retailers in question
    did not provide data on their market share. *Id*.

[^81]: *Id*.

[^82]: *See* *Hearing Aid Compatibility Order*, 18 FCC Rcd at 16781 ¶
    69; *see also* *Hearing Aid Compatibility Reconsideration Order and
    Further Notice*, 20 FCC Rcd at 11244 ¶ 51.

[^83]: 47 C.F.R. §§ 20.19(e)(1)-(2).

[^84]: *Hearing Aid Compatibility Reconsideration Order and Further
    Notice*, 20 FCC Rcd at 11244 ¶ 53.

[^85]: *Id*. at 11249 ¶ 66.

[^86]: *Id*.

[^87]: Cingular Comments at 4.

[^88]: Research in Motion Comments at 1-2.

[^89]: *See infra* ¶ 85.

[^90]: *See, e.g.*, Joint Consensus Plan at 5, 15-16.

[^91]: *See* 47 C.F.R. § 20.19(c).

[^92]: 47 C.F.R. § 20.19(c).

[^93]: *Id*. § 20.19(d).

[^94]: Joint Consensus Plan at 8.

[^95]: *See* Id. A multi-mode handset could not be counted as compatible
    over any air interface unless it is compatible in all air interfaces
    over which it operates. *See infra* ¶ 84.

[^96]: ATIS has provided the Commission a detailed report describing a
    variety of technological constraints impacting the wireless
    industry's further progress towards compatibility with hearing aids,
    particularly with respect to GSM. *See* *Staff Report* at ¶ 32. *See
    also* Joint Consensus Plan at 8 ("This high percentage is currently
    not possible in a technology-neutral manner because commercially
    popular handset form factors in certain air interfaces have extreme
    difficulty achieving \[hearing aid compatibility\] compliance.").

[^97]: *See* Joint Consensus Plan at 6-7.

[^98]: The Joint Consensus Plan also states that each Tier I carrier
    choosing the alternative schedule shall "\[e\]nsure that at least
    ten (10) of its handset models for each air interface comply with §
    20.19(b)(1) by February 18, 2011." *Id*. at C-3. Consistent with the
    apparent intent of the Joint Consensus Plan, we intend that the
    February 2010 deployment obligation would remain in effect until
    such time as it may be changed by future Commission rulemaking
    action.

[^99]: *See infra* ¶¶ 56-57.

[^100]: *See Staff Report* at ¶ 21.

[^101]: The number of individuals using telecoil-equipped hearing aids
    is increasing and includes some with the most profound hearing loss.
    *See, e.g., Staff Report* at ¶ 35 n.91.

[^102]: *See* Joint Consensus Plan at 9 n.14.

[^103]: *See Staff Report* at ¶ 21.

[^104]: *See id. at ¶* 35 n.91.

[^105]: *See Staff Report* at ¶ 101; *see also* Joint Consensus Plan at
    12.

[^106]: The Joint Consensus Plan only contains deployment deadline rule
    changes for Tier I carriers.

[^107]: *See* Section 68.4 (a) of the Commission's Rules Governing
    Hearing Aid-Compatible Telephones, Petitions for Waiver of Section
    20.19 of the Commission's Rules, WT Docket No. 01-309, *Memorandum
    Opinion and Order,* 22 FCC Rcd 7171 (2007) (resolving 19 requests
    for waiver of the September 18, 2005 acoustic coupling compatibility
    deployment deadline).

[^108]: *Id.*

[^109]: *See* *Hearing Aid Compatibility Order*, 18 FCC Rcd at 16781 ¶
    70.

[^110]: See Joint Consensus Plan at 9-10, 12. As HLAA noted in its
    comments, the Apple iPhone has been rolled out, in part, on AT&T's
    EDGE network but is not yet hearing aid-compatible, and Apple has
    not been involved in any discussions regarding hearing aid
    compatibility. *See Staff Report* at ¶ 82. We expect these proposals
    will increase the selection of popular and innovative handsets such
    as the iPhone available to consumers with hearing loss. We note
    that, to our knowledge, Apple currently manufactures fewer than
    three handset models, and as such, it is not required under Section
    20.19(e) of our hearing aid compatibility rules to offer hearing
    aid-compatible phones.

[^111]: *See Staff Report* at ¶ 40; Joint Consensus Plan at 9-10.

[^112]: *See id*. at Attachment C.

[^113]: *Id*.

[^114]: *Id*.

[^115]: *See id.*; Joint Consensus Plan at 10.

[^116]: *See infra* ¶¶ 65-71*.*

[^117]: Joint Consensus Plan at 12.

[^118]: *Id.*

[^119]: Moreover, to avoid confusion with the tiers defining carrier
    size, we believe a different term such as "levels of functionality"
    may be preferable.

[^120]: 47 C.F.R. § 20.19(b).

[^121]: *See* *Hearing Aid Compatibility Order*, 18 FCC Rcd at 16779 ¶
    63.

[^122]: 47 U.S.C. § 610(b)(1)(B) (requiring all telephones manufactured
    in the U.S. to "meet established technical standards for hearing aid
    compatibility").

[^123]: *See* *Hearing Aid Compatibility Order*, 18 FCC Rcd at 16770-71
    ¶ 43.

[^124]: *See id.* at 16776 ¶ 55.

[^125]: *Id.* at 16777 ¶ 57. ANSI elected to develop the standard as one
    that measures performance, rather than one that would establish a
    firm build-to requirement. *See id.* at 16779 ¶ 63. To use a digital
    wireless phone with a hearing aid or cochlear implant in acoustic
    coupling mode, RF interference and other electromagnetic
    interference (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, M1 through M4
    (originally U1 through U4), based on their RF emission levels, with
    M1 being the highest emissions and M4 the lowest emissions. The
    standard also provides a methodology for rating hearing aids from M1
    to M4 based on their immunity to interference, with M1 being the
    least immune and M4 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.

[^126]: *See id*. at 16779 ¶ 63.

[^127]: *See id.*

[^128]: ANSI had released a draft version of the hearing aid
    compatibility standard, ANSI C63.19-2005. *See* Public Notice, "OET
    Clarifies Use of Revised Wireless Phone Hearing Aid Compatibility
    Standard Measurement Procedures and Rating Nomenclature," 20 FCC Rcd
    8188 (OET 2005)

[^129]: *See generally 2006 ANSI Standard Public Notice*. In 2006, ANSI
    had adopted a revised version 3.12 of standard C63.19. This
    revision, among other things, redesignated the U3 rating as M3,
    redesignated the U3T rating as T3, revised the testing standard for
    meeting an M3 rating for phones operating below 960 MHz, and made
    some changes in GSM testing standards in other frequency bands.
    *See* American National Standard for Methods of Measurement of
    Compatibility between Wireless Communications Devices and Hearing
    Aids, ANSI C63.19-2006, at 1, 52-53, 65-66; *see also supra* note
    125.

[^130]: *2006 ANSI Standard Public Notice,* 21 FCC Rcd at 6384-85.

[^131]: We would retain the current practice of permitting the Chief of
    WTB, in coordination with the Chief of OET, on delegated authority,
    to approve use of future versions of the standard, including
    multiple alternative versions, to the extent that the changes do not
    raise major compliance issues.

[^132]: *See* ANSI Petition at 1-2.

[^133]: *See* American National Standard for Methods of Measurement of
    Compatibility between Wireless Communications Devices and Hearing
    Aids, ANSI C63.19-2007, at 21-22, 56-57 (*ANSI C63.19-2007
    Standard*).

[^134]: *See supra* ¶ 60.

[^135]: ANSI Petition at 2.

[^136]: Joint Consensus Plan at 13.

[^137]: ANSI Petition at 2.

[^138]: Some of the commenters in the proceeding on WTB's *Staff Report*
    supported the ANSI petition. *See Staff Report* at ¶ 9 n.34.

[^139]: Joint Consensus Plan at 13.

[^140]: However, under the Joint Consensus Plan, a manufacturer that is
    required to meet a T3 rating for 20 percent of its models under
    proposed Section 20.19(d)(1)(i) would only be able to count toward
    this requirement one model manufactured after January 1, 2009, and
    certified under a pre-2007 standard. *See* Appendix B.

[^141]: Joint Consensus Plan at 13.

[^142]: *Id.*

[^143]: Reports were due on May 17, 2004, November 17, 2004, May 17,
    2005, November 17, 2005, May 17, 2006, and November 17, 2006. *See
    Hearing Aid Compatibility Order*, 18 FCC Rcd at 16787 ¶ 89; *see
    also* Wireless Telecommunications Bureau Announces Hearing Aid
    Compatibility Reporting Dates for Wireless Carriers and
    Manufacturers, WT Docket No. 01-309, *Public Notice*, 19 FCC Rcd
    4097 (2004).

[^144]: These reports are due on November 19, 2007, and November 17,
    2008. *Id*. The Commission permitted digital wireless handset
    manufacturers and service providers to submit joint reports in order
    to minimize the reporting burden. *See Hearing Aid Compatibility
    Order*, 18 FCC Rcd at 16787 ¶ 89.

[^145]: *See Staff Report* at ¶ 19.

[^146]: *Hearing Aid Compatibility Order*, 18 FCC Rcd at 16787 ¶ 89. The
    Commission also asked digital wireless service providers to
    highlight in these reports any differences in handset offerings
    among regions of their service areas. *See id*.

[^147]: *See id*.

[^148]: *See id.*

[^149]: *See id.* at 16783 ¶ 74.

[^150]: *See supra ¶* 39*.*

[^151]: *See* 47 U.S.C. § 610(f).

[^152]: *See Staff Report* at ¶¶ 52-53.

[^153]: *See, e.g.,* i*d.* at ¶ 49 (noting problems associating the
    manufacturer model number with the FCC ID).

[^154]: *Id*.

[^155]: Joint Consensus Plan at 11 nn.17-18.

[^156]: *Id.* at 11.

[^157]: *Id*.

[^158]: *See supra* note 144.

[^159]: This would maintain a 12 month period between service provider
    reports, but would require manufacturers to file one set of reports
    6 months apart.

[^160]: *See supra* ¶ 51 (discussion of staggered deployment).

[^161]: *See Staff Report* at ¶ 47.

[^162]: We note that the Commission's Part 2 rules do not require
    manufacturers to submit model information. *See, e.g.*, 47 C.F.R §
    2.924 (stating that marketing of electrically identical devices
    having different model/type numbers or trade names is permitted
    without further authorization).

[^163]: For each FCC ID, the database record contains all the permissive
    changes permitted under Part 2 of the Commission's rules. *See id*.
    § 2.1043(b).

[^164]: *See* http://www.fcc.gov/cgb/dro/ (last visited July 8, 2007).

[^165]: *See* 47 U.S.C. § 255 (mandating that telecommunications
    equipment and services be accessible to persons with disabilities,
    if such access is readily achievable).

[^166]: *See Staff Report* at ¶ 48 n.135; Comments of the American
    Association of People with Disabilities in 2006 Biennial Regulatory
    Review, CG Docket No. 06-152 (filed Sept. 16, 2006) (suggesting that
    process for filing hearing aid compatibility complaints be made more
    consumer-friendly by making it more similar to the process for
    Section 255 complaints). Under the hearing aid compatibility
    complaint process, consumers are responsible for identifying the
    agent designated by manufacturers or service providers for service
    of complaints under 47 C.F.R. § 68.418(b). We note that the
    Commission extended its Part 68, Subpart E rules to allow consumers
    to file informal complaints under those rules if they find that
    wireless service providers or manufacturers of wireless equipment
    are not complying with its hearing aid compatibility rules*. See
    Hearing Aid Compatibility Order*, 18 FCC Rcd at 16789 ¶ 95.

[^167]: *See Staff Report* at ¶ 48.

[^168]: *See* 47 C.F.R §§ 2.924 & 2.1043.

[^169]: *See Staff Report* at ¶ 48 n.135.

[^170]: *See id*. at ¶ 96, *citing* letter from Carole M. Rogin,
    Executive Director, Hearing Industries Association to Linda S.
    Kahan, Deputy Director, Center for Devices and Radiological Health,
    Department of Health and Human Services, Food and Drug
    Administration, dated July 12, 2007 (filed in WT Docket No. 06-203).

[^171]: *See* Joint Consensus Plan at 14.

[^172]: *See, e.g*.,
    http://www.wireless.att.com/about/disability-resources/disability-resources.jsp;
    http://aboutus.vzw.com/accessibility/index.html;
    http://www.nextel.com/en/about/community/hac_compliance.shtml;
    http://www.t-mobile.com/Company/Community.aspx?tp=Abt_Tab_Safety&tsp=Abt_Sub_TTYPolicy.

[^173]: *See* www.accesswireless.org *.*

[^174]: *See* http://www.accesswireless.org/accessibility/sites.cfm.

[^175]: *See Staff Report* at ¶ 54.

[^176]: *See supra* ¶ 54.

[^177]: *See Staff Report* at ¶ 55.

[^178]: Joint Consensus Plan at 4.

[^179]: *See* *700 MHz ServiceReport and Order*, 22 FCC Rcd at 8117-8122
    ¶¶ 142-50.

[^180]: The Commission also explained that it cannot impose hearing aid
    compatibility requirements for a band or service until applicable
    technical standards have been established. In recognition of the
    pressing need to develop applicable technical standards in certain
    frequency bands for which service rules have been or will soon be
    established, the Commission established a 24-month timetable for
    interested stakeholders to develop standards in these bands. *Id*.

[^181]: *See Staff Report* at ¶ 75; *see also* 47 C.F.R. § 20.9(a)(10)
    (including MSS that involves the provision of commercial radio
    service directly to end users within the definition of CMRS).

[^182]: *See* Flexibility for Delivery of Communications by Mobile
    Satellite Service Providers in the 2 GHz Band, the L Band, and the
    1.6/2.4 GHz Band, *Report and Order and Notice of Proposed
    Rulemaking,* 18 FCC Rcd 1962 (2003) (permitting flexibility in the
    delivery of communications by MSS providers that operate in three
    sets of radio frequency bands: the 2 GHz MSS band (the 1990-2025 MHz
    uplink and the 2165-2200 MHz downlink), the L-band (general
    designation for frequencies from 1 to 2 GHz) and the Big LEO bands
    (referring to the 1.6/2.4 GHz bands).

[^183]: *See Staff Report* at ¶ 76.

[^184]: *See supra* ¶ 11and note 31.

[^185]: *ANSI C63.19-2007 Standard* at 18, Table 4.2.

[^186]: *700 MHz Service Report and Order*, 22 FCC Rcd at 8119 ¶ 148.

[^187]: *See Hearing Aid Compatibility Order,* 18 FCC Rcd at 16779 ¶ 63
    (not discussing the inclusion of additional services, air
    interfaces, or frequency bands). The Chief, Wireless
    Telecommunications Bureau, in coordination with Chief, Office of
    Engineering and Technology, does have delegated authority to approve
    revised versions of ANSI C63.19 to the extent that the changes to
    the standard do not raise major compliance issues. *Id.*

[^188]: Joint Consensus Plan at 10.

[^189]: *See supra* ¶ 11 and note 31.

[^190]: Joint Consensus Plan at 10.

[^191]: *See supra* ¶¶ 22-31.

[^192]: *See supra* ¶ 29; *Hearing Aid Compatibility Reconsideration
    Order and Further Notice*, 20 FCC Rcd at 11244 ¶ 51. Thus, if a
    manufacturer or service provider offers two or fewer handset models
    capable of operating over a given air interface (including both
    single-mode and multi-mode models), it is not subject to benchmarks
    applicable to that air interface.

[^193]: Joint Consensus Plan at 12.

[^194]: *See Staff Report* at ¶ 66.

[^195]: We note that the Joint Consensus Plan does not propose adopting
    any rules in this regard.

[^196]: Comments of Technology Access Program of Gallaudet University in
    WT Docket No. 06-203 at 7.

[^197]: 47 C.F.R. § 20.19(a).

[^198]: WiFi (Wireless Fidelity) is a wireless technology that is based
    on the Institute of Electrical and Electronics Engineers (IEEE)
    802.11 standards.

[^199]: 47 C.F.R. § 20.19(a).

[^200]: We note that VoIP is an application and can be provided over
    various frequency bands using any air interface, including those
    used to provide non-VoIP services.

[^201]: *See Staff Report* at ¶ 79.

[^202]: *Id.*

[^203]: *Id.*

[^204]: 47 U.S.C. § 610(b)(2).

[^205]: 47 C.F.R. § 20.19(a); *see* *Hearing Aid Compatibility Order*,
    18 FCC Rcd at 16764-65 ¶ 26.

[^206]: *See* *700 MHz Order*, 22 FCC Rcd at 8117-8120 ¶¶ 142-144.

[^207]: *See* 47 U.S.C. § 610(b)(1); 47 C.F.R. § 68.4.

[^208]: We note that we have authority to waive this requirement for new
    telephones, technologies, or services upon a showing that making
    such telephones hearing aid-compatible would be technologically
    infeasible or would increase costs to such an extent as to preclude
    successful marketing. 47 U.S.C. § 610(b)(3).

[^209]: *See Staff Report* at ¶ 82 n.228 (noting that Apple's iPhone is
    not hearing aid-compatible, and that Apple is not known to be
    involved in any discussions regarding hearing aid compatibility).

[^210]: *See supra* ¶¶ 54-57.

[^211]: 47 C.F.R. § 20.19(a); *but see Hearing Aid Compatibility Order*,
    18 FCC Rcd at 16765 ¶ 26 (stating that the rule would apply only to
    voice services).

[^212]: We note that, in the *Wireless Broadband Internet Access Service
    Declaratory Ruling,* the Commission reiterated its commitment to
    effectuate the accessibility policy embodied in section 255 of the
    Communications Act and stated that it would continue to monitor the
    development of wireless broadband Internet access service and its
    effects on the policy goals of section 255. *See* In the Matter of
    Appropriate Regulatory Treatment for Broadband Access to the
    Internet Over Wireless Networks, WT Docket No. 07-53, Declaratory
    Ruling, 22 FCC Rcd 5901, 5921-22 ¶¶ 58-59 (2007). We note also that
    the Commission has extended disability access and telecommunications
    relay service requirements to providers of interconnected VoIP
    services. *See* IP-Enabled Services, Implementation of Sections 255
    and 251(a)(2); Access to Telecommunications Service,
    Telecommunications Equipment, and Customer Premises Equipment by
    Persons with Disabilities, WC Docket No. 04-36, WT Docket No.
    96-198, CG Docket No. 03-123, *Report and Order*, 22 FCC Rcd 11275
    (2007).

[^213]: In the Matter of Service Rules for the 698-746, 747-762 and
    777-792 MHz Bands, WT Docket 06-150, *Second Report and Order,* 22
    FCC Rcd 15289, 15365 ¶ 206 (2007) (*700 MHz Service Second Report
    and Order)*. The Upper 700 MHz Band C Block is composed of 22
    megahertz of spectrum at 746-757 MHz and 776-787 MHz. *Id.* at 15294
    ¶ 4.

[^214]: *Id*.

[^215]: 47 C.F.R. § 20.19(a).

[^216]: Under our current rules, and under the revised rules proposed in
    this Notice, manufacturers are required to meet the Commission's
    hearing aid compatibility standards by producing a certain number or
    percentage of hearing aid-compatible handset models for service
    providers. These hearing aid compatibility requirements for
    manufacturers are codified in terms of what handsets they "must
    offer" to "service providers." *See* 47 C.F.R. § 20.19(c)(1),
    (d)(1).

[^217]: *See* *700 MHz Service Second Report and Order*, 22 FCC Rcd at
    15365 ¶ 206.

[^218]: *See supra* ¶ 27.

[^219]: *See* 47 C.F.R. § 20.19(c).

[^220]: *See supra* Section IV.A.1.

[^221]: *Id.*

[^222]: *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).

[^223]: Amendment of the Commission's Rules Governing Hearing
    Aid-Compatible Mobile Handsets, WT Docket No. 07-250, Section
    68.4(a) of the Commission's Rules Governing Hearing Aid Compatible
    Telephones, WT Docket No. 01-309, Petition of American National
    Standards Institute Accredited Standards Committee C63 (EMC) ANSI
    ASC C63™, *Notice of Proposed Rulemaking*; FCC 07-192, (rel. Nov. 7,
    2007) (*Notice*).

[^224]: *See* 5 U.S.C. § 603(a).

[^225]: *Id.*

[^226]: In particular, this exemption extends to the requirements
    imposed by Chapter 6 of Title 5, United States Code, Section 3 of
    the Small Business Act (15 U.S.C. 632) and Section 3507 and 3512 of
    Title 44, United States Code. Consolidated Appropriations Act 2000,
    Pub. L. No. 106-113, 113 Stat. 2502, App. E, Sec. 213(a)(4)(A)-(B);
    *see* 145 Cong. Rec. H12493-94 (Nov. 17, 1999); 47 U.S.C.A. 337 note
    at Sec. 213(a)(4)(A)-(B).

[^227]: *See Notice* at ¶ 11 (defining U3 rating).

[^228]: *See Notice* at ¶¶ 36-40 (defining existing benchmarks).

[^229]: *See* Section 68.4(a) of the Commission's Rules Governing
    Hearing Aid-Compatible Telephones, WT Docket No. 01-309, *Report and
    Order*, 18 FCC Rcd 16753, 16782 ¶ 74 (2003); *Erratum*, 18 FCC Rcd
    18047 (2003) (*Hearing Aid Compatibility Order*).

[^230]: *See* Section 68.4(a) of the Commission's Rules Governing
    Hearing Aid-Compatible Telephones, WT Docket No. 01-309, WT Docket
    No. 06-203, *Report on the Status of Implementation of the
    Commission's Hearing Aid Compatibility Requirements*, DA 07-4151
    (WTB rel. Oct. 5, 2007) (*Staff Report*)*.*

[^231]: *See* Supplemental Comments of ATIS in WT Docket No. 06-203
    (filed June 25, 2007) (Joint Consensus Plan).

[^232]: *Id*. at 4, 9 n.14.

[^233]: *Id*. at 4, 12.

[^234]: *Id*. at 4.

[^235]: *Id*.

[^236]: *See, e.g., Notice* at ¶¶ 78-88.

[^237]: The four nationwide, terrestrial CMRS carriers, AT&T Services,
    Inc., Verizon Wireless, Sprint Nextel, and T-Mobile USA, are
    considered Tier I carriers. *See* Revision of the Commission's Rules
    to Ensure Compatibility with Enhanced 911 Emergency Calling Systems,
    Phase II Compliance Deadlines for Non-Nationwide CMRS Carriers,
    *Order to Stay*, 17 FCC Rcd 14841, 14843 ¶ 7 (2002) (*Non-Nationwide
    Carriers Order*). No Tier I carriers are small entities.

[^238]: 47 C.F.R. § 20.19(a).

[^239]: *See* Service Rules for the 698-746, 747-762 and 777-792 MHz
    Bands, WT Docket No. 06-150, Revision of the Commission's Rules to
    Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC
    Docket No. 94-102, Section 68.4(a) of the Commission's Rules
    Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309,
    Biennial Regulatory Review -- Amendment of Parts 1, 22, 24, 27, and
    90 to Streamline and Harmonize Various Rules Affecting Wireless
    Radio Services, WT Docket 03-264, Former Nextel Communications, Inc.
    Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the
    Commission's Rules, WT Docket No. 06-169, Implementing a Nationwide,
    Broadband, Interoperable Public Safety Network in the 700 MHz Band,
    PS Docket No. 06-229, Development of Operational, Technical and
    Spectrum Requirements for Meeting Federal, State and Local Public
    Safety Communications Requirements Through the Year 2010, WT Docket
    No. 96-86, *Report and Order and Further Notice of Proposed
    Rulemaking*, 22 FCC Rcd 8064, 8117-8122 ¶¶ 142-50 (2007) (*700 MHz
    Order*). The Commission also explained that it cannot impose hearing
    aid compatibility requirements for a band or service until
    applicable technical standards have been established. In recognition
    of the pressing need to develop applicable technical standards in
    certain frequency bands for which service rules have been or will
    soon be established, the Commission established a 24-month timetable
    for interested stakeholders to develop standards in these bands.
    *Id*.

[^240]: 5 U.S.C. § 604(a)(3).

[^241]: 5 U.S.C. § 601(6).

[^242]: 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 definition(s) in the Federal
    Register."

[^243]: 15 U.S.C. § 632.

[^244]: Amendment of the Commission's Rules to Establish Part 27, the
    Wireless Communications Service (WCS), *Report and Order*, 12 FCC
    Rcd 10785, 10879 ¶ 194 (1997).

[^245]: *See* Letter to Amy Zoslov, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, Federal
    Communications Commission, from Aida Alvarez, Administrator, Small
    Business Administration, dated December 2, 1998.

[^246]: *See* Service Rules for the 746-764 MHz Bands, and Revisions to
    Part 27 of the Commission's Rules, *Second Report and Order*, 15 FCC
    Rcd 5299 (2000).

[^247]: *Id*. at 5343 ¶ 108.

[^248]: *Id*.

[^249]: *Id*. At 5343 ¶ 108 n.246 (for the 746-764 MHz and 776-704 MHz
    bands, the Commission is exempt from 15 U.S.C. § 632, which requires
    Federal agencies to obtain Small Business Administration approval
    before adopting small business size standards).

[^250]: *See* "700 MHz Guard Bands Auction Closes: Winning Bidders
    Announced," *Public Notice*, 15 FCC Rcd 18026 (2000).

[^251]: *See* "700 MHz Guard Bands Auctions Closes: Winning Bidders
    Announced," *Public Notice*, 16 FCC Rcd 4590 (WTB 2001).

[^252]: *See* In the Matter of Service Rules for the 698-746, 747-762
    and 777-792 MHz Bands, WT Docket 06-150, *Second Report and Order,*
    22 FCC Rcd 15289, 15339-15344 ¶¶ 118-134 (2007) (*700 MHz Second
    Report and Order)*.

[^253]: *Id.*

[^254]: *See* Auction of 700 MHz Band Licenses Scheduled for January 24,
    2008**,** AU Docket No. 07-157, *Notice and Filing Requirements,
    Minimum Opening Bids, Reserve Prices, Upfront Payments, and Other
    Procedures for Auctions 73 and 76*, DA 07-4171 at ¶ 70 (WTB rel.
    Oct. 5, 2007); Reallocation and Service Rules for the 698-746 MHz
    Spectrum Band (Television Channels 52-59), *Report and Order*, 17
    FCC Rcd 1022, 1087-88 (2002).

[^255]: *Id.* at 1088.

[^256]: *See* Letter to Thomas Sugrue, Chief, Wireless
    Telecommunications Bureau, Federal Communications Commission, from
    Aida Alvarez, Administrator, Small Business Administration, dated
    August 10, 1999.

[^257]: *See* "Lower 700 MHz Band Auction Closes," *Public Notice*, 17
    FCC Rcd 17272 (WTB 2002).

[^258]: *See* "Lower 700 MHz Band Auction Closes," *Public Notice*, 18
    FCC Rcd 11873 (WTB 2003).

[^259]: *Id*.

[^260]: *See* Amendments to Parts 1, 2, 27 and 90 of the Commission's
    Rules to License Services in the 216-220 MHz, 1390-1395 MHz,
    1427-1429 MHz, 1429-1432 MHz, 1432-1435 MHz, 1670-1675 MHz, AND
    2385-2390 MHz Government Transfer Bands, 17 FCC Rcd 9980 (2002)
    *(Government Transfer Bands Service Rules Report and Order*).

[^261]: *See Service Rules Notice,* 17 FCC Rcd at 2550-51 ¶¶ 144-146. To
    be consistent with the size standard of "very small business"
    proposed for the 1427-1432 MHz band for those entities with average
    gross revenues for the three preceding years not exceeding \$3
    million, the *Service Rules Notice* proposed to use the terms
    "entrepreneur" and "small business" to define entities with average
    gross revenues for the three preceding years not exceeding \$40
    million and \$15 million, respectively. Because the Commission is
    not adopting small business size standards for the 1427-1432 MHz
    band, it instead uses the terms "small business" and "very small
    business" to define entities with average gross revenues for the
    three preceding years not exceeding \$40 million and \$15 million,
    respectively.

[^262]: *See* Letter from Hector V. Barreto, Administrator, Small
    Business Administration, to Margaret W. Wiener, Chief, Auctions and
    Industry Analysis Division, Wireless Telecommunications Bureau,
    Federal Communications Commission, dated January 18, 2002.

[^263]: Such bidding credits are codified for the unpaired 1390-1392
    MHz, paired 1392-1395 MHz, and the paired 1432-1435 MHz bands in 47
    C.F.R. § 27.807. Such bidding credits are codified for the unpaired
    1670-1675 MHz band in 47 C.F.R. § 27.906.

[^264]: In the *Part 1 Third Report and Order*, the Commission adopted a
    standard schedule of bidding credits, the levels of which were
    developed based on its auction experience. *Part 1 Third Report and
    Order*, 13 FCC Rcd at 403-04 ¶ 47. *See also* 47 C.F.R. §
    1.2110(f)(2).

[^265]: *See Service Rules Notice,* 17 FCC Rcd at 2550-51 ¶ 145.

[^266]: *See, e.g.,* Revision of Part 22 and Part 90 of the Commission's
    Rules to Facilitate Future Development of Paging Systems;
    Implementation of Section 309(j) of the Communications Act \--
    Competitive Bidding, WT Docket No. 96-18, PR Docket No. 93-253,
    *Memorandum Opinion and Order on Reconsideration and Third Report
    and Order*, 14 FCC Rcd 10030, 10091 ¶ 112 (1999).

[^267]: 47 U.S.C. § 309(j)(3)(B), (4)(C)-(D). The Commission will also
    not adopt special preferences for entities owned by minorities or
    women, and rural telephone companies. The Commission did not receive
    any comments on this issue, and it does not have an adequate record
    to support such special provisions under the current standards of
    judicial review. *See* *Adarand Constructors v. Peña*, 515 U.S. 200
    (1995) (requiring a strict scrutiny standard of review for
    government mandated race-conscious measures); *United States v.
    Virginia*, 518 U.S. 515 (1996) (applying an intermediate standard of
    review to a state program based on gender classification).

[^268]: Service Rules for Advanced Wireless Services in the 1.7 GHz and
    2.1 GHz Bands, WT Docket No. 02-353, *Report and Order*, 18 FCC Rcd
    25162 (2003) (*AWS-1 Report and Order*).

[^269]: *See* Implementation of Section 309(j) of the Communications Act
    \-- Competitive Bidding, *Third Memorandum Opinion and Order and
    Further Notice of Proposed Rulemaking*, 10 FCC Rcd 175, 196 (1995);
    Implementation of Section 309(j) of the Communications Act \--
    Competitive Bidding, *Fifth Report and Order*, 9 FCC Rcd 5581-5584
    (1995); 47 C.F.R. §§ 24.320(b) and 24.720(b).

[^270]: *See* 47 C.F.R. Part 21, subpart K; Amendment of Parts 1, 21,
    73, 74 and 101 of the Commission's Rules to Facilitate the Provision
    of Fixed and Mobile Broadband Access, Educational and Other Advanced
    Services in the 2150-2162 and 2500-2690 MHz Bands; Part 1 of the
    Commission\'s Rules - Further Competitive Bidding Procedures;
    Amendment of Parts 21 and 74 to Enable Multipoint Distribution
    Service and the Instructional Television Fixed Service Amendment of
    Parts 21 and 74 to Engage in Fixed Two-Way Transmissions; Amendment
    of Parts 21 and 74 of the Commission\'s Rules With Regard to
    Licensing in the Multipoint Distribution Service and in the
    Instructional Television Fixed Service for the Gulf of Mexico, 19
    FCC Rcd 14165 (2004) ("*MDS/ITFS Order"*).

[^271]: S*ee* 47 C.F.R. Part 74, subpart I; *MDS/ITFS Order*, 19 FCC Rcd
    14165.

[^272]: *See* *Annual Assessment of the Status of Competition in the
    Market for the Delivery of Video Programming, Eleventh Annual
    Report,* 20 FCC Rcd 2507, 2565 ¶ 131 (2006) ("*2006 Cable
    Competition Report*").

[^273]: *Id*.

[^274]: 13 C.F.R. § 121.201, NAICS code 515210.

[^275]: MDS Auction No. 6 began on November 13, 1995, and closed on
    March 28, 1996. (67 bidders won 493 licenses.)

[^276]: 47 C.F.R. § 21.961(b)(1).

[^277]: *See ITFS* *Order*, 10 FCC Rcd at 9589.

[^278]: 47 U.S.C. § 309(j). Hundreds of stations were licensed to
    incumbent MDS licensees prior to implementation of Section 309(j) of
    the Communications Act of 1934, 47 U.S.C. § 309(j). For these
    pre-auction licenses, the applicable standard is SBA's small
    business size standards for "all other telecommunications" (annual
    receipts of \$23.5 million or less). *See* 13 C.F.R. § 121.201,
    NAICS code 517919.

[^279]: In addition, the term "small entity" under SBREFA applies to
    small organizations (nonprofits) and to small governmental
    jurisdictions (cities, counties, towns, townships, villages, school
    districts, and special districts with populations of less than
    50,000). 5 U.S.C. §§ 601(4)-(6). We do not collect annual revenue
    data on EBS licensees.

[^280]: 13 C.F.R. § 121.201, NAICS code 517210.

[^281]: *Id*.

[^282]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization," Table 5, NAICS code 517212.

[^283]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is for firms with "1000
    employees or more."

[^284]: *See* Amendment of Parts 20 and 24 of the Commission's Rules --
    Broadband PCS Competitive Bidding and the Commercial Mobile Radio
    Service Spectrum Cap, *Report and Order*, 11 FCC Rcd 7824, 7850-7852
    ¶¶ 57-60 (1996); *see also* 47 C.F.R. § 24.720(b).

[^285]: *See* Amendment of Parts 20 and 24 of the Commission's Rules --
    Broadband PCS Competitive Bidding and the Commercial Mobile Radio
    Service Spectrum Cap, *Report and Order*, 11 FCC Rcd 7824, 7852
    ¶ 60.

[^286]: *See* Letter to Amy Zoslov, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, Federal
    Communications Commission, from Aida Alvarez, Administrator, Small
    Business Administration, dated December 2, 1998.

[^287]: FCC News, "Broadband PCS, D, E and F Block Auction Closes," No.
    71744 (rel. January 14, 1997).

[^288]: *See* "C, D, E, and F Block Broadband PCS Auction Closes,"
    *Public Notice*, 14 FCC Rcd 6688 (WTB 1999).

[^289]: *See* "C and F Block Broadband PCS Auction Closes; Winning
    Bidders Announced," *Public Notice,* 16 FCC Rcd 2339 (2001).

[^290]: 47 C.F.R. § 90.814(b)(1).

[^291]: *Id*.

[^292]: *See* Letter to Thomas Sugrue, Chief, Wireless
    Telecommunications Bureau, Federal Communications Commission, from
    Aida Alvarez, Administrator, Small Business Administration, dated
    August 10, 1999. We note that, although a request was also sent to
    the SBA requesting approval for the small business size standard for
    800 MHz, approval is still pending.

[^293]: *See* "Correction to Public Notice DA 96-586 'FCC Announces
    Winning Bidders in the Auction of 1020 Licenses to Provide 900 MHz
    SMR in Major Trading Areas,'" *Public Notice*, 18 FCC Rcd 18367 (WTB
    1996).

[^294]: *See* "Multi-Radio Service Auction Closes," *Public Notice*, 17
    FCC Rcd 1446 (WTB 2002).

[^295]: 13 C.F.R. § 121.201, NAICS code 517210.

[^296]: *Id.*

[^297]: *Id*.

[^298]: 13 C.F.R. § 121.201, North American Industry Classification
    System ("NAICS") code 51740, formerly NAICS code 513340.

[^299]: 13 C.F.R. § 121.201, NAICS code 334220.

[^300]: 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.

[^301]: U.S. Census Bureau, *1997 Economic Census*, Industry Series:
    Manufacturing, "Industry Statistics by Employment Size," Table 4,
    NAICS code 334220 (issued August 1999).

[^302]: U.S. Census Bureau, "2002 NAICS Definitions: 443112 Radio,
    Television, and Other Electronics Stores," www.census.gov (last
    modified on May 5, 2003).

[^303]: 13 C.F.R. § 121.201, NAICS code 443112.

[^304]: U.S. Census Bureau, 1997 Economic Census, Subject Series: Retail
    Trade, "Radio, Television, and other Electronics Stores," Table 4,
    NAICS code 443112 (issued Oct. 2000). These data indicate the
    estimated annual "sales size" for the firms.

[^305]: *Id*.

[^306]: WiFi (Wireless Fidelity) is a wireless technology that is based
    on the Institute of Electrical and Electronics Engineers 802.11
    standards.

[^307]: U.S. Census Bureau, "Internet Publishing and Broadcasting and
    Web Search Portals," NAICS code 519130.

[^308]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization)," Table 4, NAICS code 518111 (issued Nov. 2005).

[^309]: U.S. Census Bureau, "2002 NAICS Definitions: 519190 All Other
    Information Services" (Feb. 2004) \<www.census.gov\>. We note that
    the Commission has not reached conclusions as to whether, or under
    what conditions, VoIP services constitute communications or
    information services under the Communications Act, and our
    identification of this group of small entities as providers of
    "information services" under the Census Bureau definition is not
    intended to indicate any conclusions in this regard.

[^310]: 13 C.F.R. § 121.201, NAICS code 519190.

[^311]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization)," Table 4, NAICS code 514199 (issued Oct. 2000). This
    category was created for the 2002 Economic Census by taking a
    portion of the superseded 1997 category, "All Other Information
    Services," NAICS code 514199. The data cited in the text above are
    derived from the superseded category.

[^312]: U.S. Census Bureau, 2002 NAICS Definitions, "334220 Radio and
    Television Broadcasting and Wireless Communications Equipment
    Manufacturing";
    http://www.census.gov/epcd/naics02/def/NDEF334.HTM#N3342.

[^313]: 13 C.F.R. § 121.201, NAICS code 334220.

[^314]: U.S. Census Bureau, American FactFinder, 2002 Economic Census,
    Industry Series, Industry Statistics by Employment Size, NAICS code
    334220 (released May 26, 2005); http://factfinder.census.gov. 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 numbers given may
    reflect inflated numbers of businesses in this category, including
    the numbers of small businesses. In this category, the Census
    breaks-out data for firms or companies only to give the total number
    of such entities for 2002, which was 929.

[^315]: *Id*. An additional 18 establishments had employment of 1,000 or
    more.

[^316]: *See supra* Section A; *see also supra* para. 5 (stating "For
    example, the Commission seeks comment on the possibility of . . .
    additional reporting/outreach obligations . . . that may impact
    small entities.")

[^317]: 5 U.S.C. §§ 603(c)(1)-(c)(4).

[^318]: *See, e.g.,* *Notice* at ¶¶ 50-51.

[^319]: Tier II carriers are non-nationwide wireless radio service
    providers with more than 500,000 subscribers. Tier III carriers are
    non-nationwide wireless radio service providers with 500,000 or
    fewer subscribers. *See* *Non-Nationwide Carriers Order*,17 FCC Rcd
    at 14847 ¶¶ 22-24.