**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | WT Docket No. 01-309         |
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| Section 68.4(a) of the           | ) |                              |
| Commission's Rules Governing     | * |                              |
| Hearing Aid-Compatible           | * |                              |
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| Cingular Wireless LLC Petition   | * |                              |
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| 20.19(c)(3)(i)(A) of the         | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted:** September 7, 2005 **Released:** September 8, 2005

By the Commission: Commissioner Copps issuing a statement.

# Introduction

1.  We have before us two submissions pertaining to the hearing aid
    compatibility of digital wireless handsets employing the GSM[^1] air
    interface. First, the HAC Incubator Working Group 9 (Working Group
    9), a technical group focused on hearing aid compatibility in
    wireless handsets employing the GSM air interface, recommends that
    the Commission issue a pronouncement regarding the hearing aid
    compatibility of dual-band digital wireless handsets that employ a
    GSM air interface in the 850 MHz and 1900 MHz bands.[^2]
    Specifically, Working Group 9 has asked the Commission to
    temporarily accept the hearing aid compatibility compliance rating
    of dual-band GSM digital wireless handsets based on their operation
    in the 1900 MHz band only, rather than require the rating of the
    handsets based on operation in both the 850 MHz and 1900 MHz
    bands.[^3] In addition, we have received a request for waiver from
    Cingular Wireless LLC (Cingular).[^4] Cingular, a Tier I wireless
    carrier[^5] that exclusively offers dual-band GSM handsets that
    operate in the 850 MHz and 1900 MHz frequency bands, seeks a waiver
    of Section 20.19(c)(3)(i)(A) of the Commission's rules, which
    provides that Tier I wireless carriers must offer hearing
    aid-compatible digital wireless handsets to consumers by September
    16, 2005.[^6] T-Mobile USA, Inc. (T-Mobile), another Tier I wireless
    carrier, has separately asked the Commission for, among other
    things, relief consistent with the waiver sought by Cingular.[^7]

2.  After careful consideration and as set forth below, we adopt the
    recommendation submitted by Working Group 9 regarding temporary
    relief to any and all entities that offer dual-band digital wireless
    handsets that employ a GSM air interface in the 850 MHz and 1900 MHz
    bands. Pursuant to our waiver authority, we will accept, until
    [August 1, 2006]{.underline}, the hearing aid compatibility
    compliance rating for 1900 MHz operation as the overall compliance
    rating for dual-band GSM digital wireless handsets that operate in
    both the 850 MHz and 1900 MHz bands. Consistent with this action, we
    grant in part the Cingular Waiver Request to the extent described
    herein. Finally, we impose conditions on Cingular and all other
    entities that avail themselves of the temporary relief granted by
    this order. We believe that this temporary waiver provides adequate
    additional time for wireless carriers, service providers and
    manufacturers to ensure that GSM digital wireless handsets operating
    in the 850 MHz band are compatible with hearing aids. Our decision
    today is consistent with the Commission's goal of bringing the
    benefits of digital wireless telecommunications to the millions of
    Americans with hearing loss.

# Background

3.  In the 2003 *Hearing Aid Compatibility Order*,[^8] the Commission
    took a number of actions to further the ability of persons with
    hearing disabilities to access digital wireless telecommunications.
    Among other actions, the Commission adopted the performance levels
    set forth in American National Standards Institute (ANSI) ANSI
    C63.19-2001, *American National Standard for Methods of Measurement
    of Compatibility between Wireless Communication Devices and Hearing
    Aids, ANSI C63.19-2001*, as the applicable technical standard for
    achieving hearing aid compatibility of digital wireless
    handsets.[^9] Specifically, the Commission ruled that adoption of
    ANSI C63.19 served the public interest because the manufacture of
    digital wireless handsets comporting with this technical 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."[^10] The Commission also required handset
    manufacturers, carriers and service providers to collectively take
    steps to reduce the amount of interference emitted from digital
    wireless handsets, and established phased-in deployment benchmark
    dates for the offer of hearing aid-compatible digital wireless
    handsets.[^11] In this regard, the Commission required each of these
    classes of entities that do not satisfy the *de minimis*
    exception[^12] to begin to offer hearing aid-compatible digital
    wireless handsets by September 16, 2005.[^13]

4.  In 2005, the Commission took two additional steps to ensure that
    individuals with hearing disabilities would have access to the
    benefits of digital wireless telecommunications. First, in April
    2005, the Commission's Office of Engineering and Technology (OET)
    clarified that applicants for hearing aid compatibility
    certification could rely on either the 2001 or draft 2005 version of
    ANSI C63.19.[^14] Specifically, OET clarified that the Commission
    would accept testing to the draft ANSI C63.19-2005 standard prior to
    ANSI's final approval of the standard,[^15] and stated that,
    "\[a\]llowing the use of the new measurement and rating procedures
    now should assist manufacturers and carriers in meeting the
    September 16, 2005, deadline for providing handset models that
    comply with the radio frequency interference requirements of §
    20.19(b)."[^16]

5.  Second, in June 2005, the Commission modified the preliminary
    handset deployment benchmark specific to Tier I wireless carriers in
    order to provide greater regulatory certainty while simultaneously
    ensuring a broad array of choices for hearing impaired individuals
    who seek to purchase hearing aid-compatible wireless phones.[^17]
    Specifically, the *Hearing Aid Compatibility Reconsideration Order*
    established that by September 16, 2005, Tier I wireless carriers
    must offer four digital wireless handset models per air interface,
    or twenty-five percent of the total number of digital wireless
    handset models offered by the carrier nationwide, that meet a U3
    rating.[^18] The *Hearing Aid Compatibility Reconsideration Order*,
    however, did not modify the preliminary deployment benchmark
    obligations for handset manufacturers or Tier II or Tier III
    (*i.e*., non-nationwide) wireless carriers. Handset manufacturers
    that do not satisfy the *de minimis* exception must offer to service
    providers at least two U3-rated handset models for each air
    interface offered by September 16, 2005.[^19] Similarly,
    non-nationwide wireless carriers that do not satisfy the *de
    minimis* exception must include in their handset offerings at least
    two U3-rated handset models per air interface by September 16,
    2005.[^20]

6.  Since release of the *Hearing Aid Reconsideration Order*, we have
    received the above-noted submissions from Working Group 9 and
    Cingular, respectively, pertaining to the hearing aid compatibility
    of dual-band GSM handsets. First, Working Group 9 has recommended
    that the Commission accept in the short-term the hearing aid
    compatibility rating of a dual-band handset employing the GSM air
    interface based on its operation in the 1900 MHz band only, rather
    than to rate the handset based on operation in both the 850 MHz and
    1900 MHz bands.[^21] In support, the group asserts that "there is no
    discernable difference in user experience between M1/M2-rated 850
    MHz wireless devices and M3-rated 1900 MHz wireless
    devices\[,\]"[^22] and adds that its recommendation "is supported by
    wireless carriers, manufacturers and hearing industry
    representatives."[^23] In the long-term, Working Group 9 intends to
    work within the standards setting process to update the C63.19
    hearing aid compatibility technical standard.[^24]

7.  Second, Cingular has petitioned for waiver of the "requirement that
    it offer at least four handsets meeting a U3 or higher interference
    rating until such time as the C63.19 standard has been amended (or
    otherwise modified in accordance with standards body procedures) to
    reflect band differences between 1.9 GHz and 850 MHz."[^25] Cingular
    argues that compliance with the September 16, 2005, deployment
    benchmark is "technologically infeasible" as it pertains to
    dual-band GSM handsets.[^26] In support of its request, Cingular
    explains that it has "worked diligently to ensure that its vendors
    incorporate accessibility features into their handset products
    ..."[^27] and will retain an active role in addressing the wireless
    industry's compliance with the hearing aid compatibility rules.[^28]
    Cingular also indicates that it is prepared to comply with a number
    of conditions in exchange for the relief it seeks.[^29] The Hearing
    Industries Association (HIA), which represents the manufacturers of
    eighty-five percent of the hearing aids sold in the United
    States,[^30] and Self Help for Hard of Hearing People (SHHH), a
    nationwide support network that represents people with hearing
    loss,[^31] have filed comments discussing the challenges associated
    with hearing aid compatibility of dual-band GSM handsets and in
    support of temporary, conditional relief for Cingular.

#  DISCUSSION

8.  *[Working Group 9 Recommendation]{.underline}*. For the reasons
    discussed below, we find that adoption of the recommendation of
    Working Group 9 is consistent with the Commission's waiver
    standard[^32] and serves the public interest. Accordingly, we will
    accept, until [August 1, 2006]{.underline}, the hearing aid
    compatibility compliance rating for 1900 MHz operation as the
    overall compliance rating for dual-band GSM digital wireless
    handsets that operate in both the 850 MHz and 1900 MHz bands.

9.  First, adoption of the working group's recommendation does not
    frustrate the underlying purpose of the benchmark requirements for
    deployment of hearing aid-compatible digital wireless handsets. As
    noted earlier, the Commission established the deployment benchmarks
    in order to expedite the availability of compliant handsets and
    increase choices for consumers with hearing disabilities. Temporary
    acceptance of the hearing aid compatibility rating for 1900 MHz
    operation as the overall rating for dual-band GSM digital wireless
    handsets will increase users' choices by ensuring the availability
    of dual-band GSM handsets. Our action avoids the unintended
    consequence of delaying introduction of dual-band digital wireless
    phones that otherwise could be used by consumers with and without
    hearing disabilities.

10. Similarly, in the absence of our action today, GSM manufacturers and
    carriers might elect to divert resources by seeking to implement
    potentially "undesirable fixes"[^33] that could delay introduction
    of fully compliant dual-band digital wireless handsets. Working
    Group 9 suggests that this type of "fix" could include introduction
    of "HAC Mode" handsets, which would require the user to first find
    and then activate a separate operational mode that would reduce the
    interference potential of the handset by reducing its power, but
    with a consequent reduction in coverage.[^34] SHHH has indicated
    that persons with hearing disabilities would not find such handsets
    acceptable because they would be difficult to use, could potentially
    have poorer service and coverage, and would revert to full power for
    911 calls, increasing the chance of interference in
    emergencies.[^35] By acting on the recommendation of Working Group
    9, therefore, we allow manufacturers and carriers to focus on the
    critical goal of resolving the technical issues that impact GSM
    digital wireless handsets, and introducing, as quickly as possible,
    fully compliant dual-band handsets. As stated by HIA, "it is
    important that the process of resolving the GSM/850 issue be
    completed with reasonable dispatch\[.\]"[^36]

11. Second, adoption of the Working Group 9 recommendation satisfies the
    public interest requirement in the Commission's waiver standard. The
    broad composition of this group, and the corresponding support for
    its recommendation, weigh in favor of adopting the recommendation.
    In addition to wireless carriers (Cingular, T-Mobile and
    Sprint/Nextel) and handset manufacturers (Kyocera, LGE, Motorola,
    NEC America, Nokia, RIM, Samsung and Sony Ericsson), the group
    includes representatives from the hearing aid industry (HIA), the
    hearing disabled community (Gallaudet University -- Technology
    Access Program and SHHH), as well as the Information Technology
    Technical Assistance and Training Center, which comprises
    representatives from the Georgia Institute of Technology tasked with
    developing information and educational materials on accessibility
    matters.[^37] All of these entities support the recommendation put
    forth by the group.[^38]

12. We also find that the efforts undertaken by Working Group 9 serve
    the public interest. The group has brought its unique expertise and
    resources to bear in the important effort to resolve the present
    challenge. Moreover, the group has expressly committed to continue
    its work on this critical project.[^39] The fact that Working Group
    9 has incorporated a short-term and long-term component into its
    recommendation,[^40] and has pledged to further its efforts on this
    project, evinces its commitment to resolving the current challenge
    within a limited period of time.

13. Moreover, adopting the Working Group 9 recommendation and
    establishing a limited period of relief addresses the concerns of
    HIA and SHHH. First, this approach ensures that no handset is
    completely exempted from hearing aid compatibility compliance.[^41]
    In addition, we emphasize that the relief we grant by this order is
    "limited in time"[^42] and "restricted,"[^43] as these commenters
    have advocated. We agree with these commenters that manufacturers,
    carriers and service providers must adhere to the original intent of
    the Commission's rules -- to expeditiously introduce digital
    wireless handsets that are compatible with hearing aids -- and
    continue to work collectively and cooperatively to resolve the
    current challenge.

14. In light of this analysis, we adopt the recommendation of Working
    Group 9. We will temporarily accept, until [August 1,
    2006]{.underline}, the hearing aid compatibility compliance rating
    for 1900 MHz operation as the overall compliance rating for
    dual-band GSM digital wireless handsets that operate in both the 850
    MHz and 1900 MHz bands. Given its broad applicability, we clarify
    that this action applies to all handset manufacturers, carriers and
    service providers that offer dual-band GSM wireless handsets that
    operate in both the 850 MHz and 1900 MHz bands.

15. *[Cingular Waiver Request]{.underline}*. Consistent with our
    adoption of the Working Group 9 recommendation, we also grant the
    Cingular Waiver Request in part, but deny the request to the extent
    that it seeks broader relief. As discussed below, analysis of the
    two filings before us in the context of the Commission's waiver
    standard leads us to conclude that granting the temporary, narrow
    relief sought by Working Group 9 better serves the public interest
    than granting the broad relief sought by Cingular.

16. First, in adopting the Working Group 9 recommendation, we provide
    Cingular with a means to comply with the September 16, 2005,
    preliminary deployment benchmark obligation set forth in Section
    20.19(c)(3)(i)(A) of the Commission's rules without the need to *per
    se* exempt any particular dual-band GSM handset.[^44] Our action
    facilitates compliance with the deployment benchmark obligations by
    other Tier I wireless carriers, including T-Mobile, as well as
    handset manufacturers and smaller, non-nationwide wireless carriers
    that offer dual-band GSM digital wireless handsets and must also
    meet the September 16, 2005, deadline.[^45] Moreover, adoption of
    the Working Group 9 recommendation avoids the need for manufacturers
    to develop and design reduced power, "HAC Mode" phones, which, as
    noted earlier, would not satisfy consumers with hearing
    disabilities.[^46]

17. On the other hand, we find that Cingular's more open-ended request,
    if granted, would frustrate the underlying purpose of Section
    20.19(c)(3)(i)(A) of the Commission's rules. Whereas Cingular has
    asked for relief "until such time as the C63.19 standard has been
    amended (or otherwise modified in accordance with standards body
    procedures),"[^47] we decline to adopt an open-ended timetable that
    relies solely on action by standards setting bodies given the
    uncertainty associated with their deliberative procedures.[^48] We
    expect wireless carriers, service providers and handset
    manufacturers to make available dual-band GSM digital wireless
    handsets with a U3 or higher rating in both the 850 MHz and 1900 MHz
    bands no later than August 1, 2006. While we appreciate Cingular's
    pledge to continue to work to resolve the current technical
    challenge within the standards context, and we strongly encourage
    Cingular and all interested stakeholders to do so, we see no need to
    grant relief that is tied to this process.

18. It is also premature to declare that achieving hearing aid
    compatibility in GSM digital wireless handsets is "technologically
    infeasible."[^49] As noted by HIA, testing and analysis is ongoing.
    [^50] In this regard, Cingular asserts that the Commission's rules
    are premised on the incorrect assumption that the U3 rating is
    technologically feasible and a reliable indicator of usability for
    all air interface protocols.[^51] These are the very arguments that
    the Commission previously considered and addressed in the context of
    its action to first adopt and subsequently affirm ANSI C63.19, while
    also allowing a means to continuously review, revise and update the
    standard.[^52] Indeed, given the late-breaking and evolving
    findings, we are encouraged that Cingular has undertaken recent
    testing to more fully examine and address the compliance
    challenges.[^53] Given Cingular's efforts, the ongoing work of
    Working Group 9, and the rigorous analysis within the standards
    process, we are optimistic that the lingering technical challenges
    will be expeditiously resolved. Accordingly, we will accept the
    hearing aid compatibility compliance rating for 1900 MHz operation
    as the overall compliance rating for dual-band GSM digital wireless
    handsets that operate in both the 850 MHz and 1900 MHz bands, but
    only until [August 1, 2006]{.underline}. We urge that all parties
    work to complete this work in time to achieve compliance in the 850
    MHz band within this time frame and we plan to closely monitor the
    standards review process.

19. Having determined that the relief granted by this order should be
    temporary rather than open-ended, we now turn to consideration of
    the conditions offered by Cingular. Cingular offers that, in
    exchange for relief, it would: (1) by September 16, 2005, offer at
    least four handsets that meet a U3 rating at 1.9 GHz and a U1/U2
    rating at 850 MHz; and at least one handset that meets a U3 rating
    at 850 MHz (when powered down), (2) make available current technical
    and anecdotal information for access by the public regarding the
    hearing aid compatibility of specific GSM digital wireless
    handsets, (3) by March 2006, report to the Commission the status of
    ongoing testing efforts, (4) continue to work with stakeholders --
    including disabilities groups -- to resolve the technical challenges
    associated with dual-band GSM wireless handsets, and (5) promote
    accessories and other technologies that will facilitate the
    usability of GSM 850 MHz handsets with hearing aid devices.[^54]

20. In its filing, HIA asserts that grant of a temporary waiver would be
    appropriate subject to the conditions proposed by Cingular.[^55] In
    addition, HIA states that "Cingular's commitment to report to the
    Commission at six-month intervals is laudable and should be adopted.
    However, the waiver should still be limited in time, perhaps to one
    year."[^56] Likewise, SHHH notes that Cingular played a leading role
    in the effort to achieve accessibility of wireless devices, and
    reports that its members would "support a waiver that is narrowly
    focused on 850 MHz and that is for a restricted period of
    time."[^57] In addition, SHHH indicates its support for Cingular's
    offer to provide progress reports every six months.[^58]

21. Based on the record before us, and particularly the submissions from
    HIA and SHHH, we are persuaded that the proposed conditions
    associated with this relief with some modifications would serve the
    public interest. While our action to adopt the recommendation of
    Working Group 9 moots the second prong of the first condition
    offered by Cingular, we have considered and will largely adopt the
    other proposed conditions offered by Cingular, as discussed
    immediately below.

22. *[Conditions]{.underline}*. As a preliminary matter, we remind
    manufacturers of their obligation to certify compliance with the
    test requirements set forth in Section 2.1033 of the Commission's
    rules.[^59] Nothing in this order preempts or otherwise modifies
    that longstanding requirement. In addition, all entities, whether or
    not they opt into the temporary relief afforded by this order,
    remain obligated to comply with all of our hearing aid compatibility
    rules, including, for instance, providing live, in-store consumer
    testing[^60] and filing hearing aid compatibility compliance reports
    on the dates previously announced by the Wireless Telecommunications
    Bureau.[^61]

23. As detailed below, we impose reporting and outreach obligations on
    Cingular and any other entity that avails itself of the temporary
    relief provided by this order.[^62] At the outset, we note that
    these conditions are *in addition to* the hearing aid compatibility
    rules and procedures set forth in Section 20.19 of the Commission's
    rules and promulgated pursuant to the *Hearing Aid Compatibility
    Order* and the more recent *Hearing Aid Compatibility
    Reconsideration Order*. None of these conditions should be construed
    as preempting or otherwise excusing compliance with any hearing aid
    compatibility rule or policy. Furthermore, we share the concern
    expressed by SHHH that efforts to resolve the challenges associated
    with GSM digital wireless handsets could divert manufacturers from
    meeting the September 2006 hearing aid compatibility milestone for
    telecoil coupling.[^63] We strongly caution all digital wireless
    handset manufacturers, carriers and service providers to implement
    all necessary steps to ensure compliance with this milestone.

-   [Reporting]{.underline}

1.  Cingular and any other entity that avails itself of the relief
    afforded by this order must so notify the Commission in its upcoming
    [November 17, 2005]{.underline}, hearing aid compatibility
    compliance report. In addition to providing notice, such entity must
    include detailed information in its report that describes and
    discusses with specificity the status of its efforts to offer
    dual-band GSM handsets that achieve a rating of U3 or higher in the
    850 MHz band in addition to the 1900 MHz band. We note that this
    condition is consistent with the requirement that compliance reports
    provide information regarding "any activities related to ANSI C63.19
    or other standards work intended to promote compliance with" the
    Commission's rules and policies.[^64]

2.  Cingular and any other entity that avails itself of the relief
    afforded by this order and that so notifies the Commission on or
    before November 17, 2005, (as referenced in condition 1, above),
    must include in its [May 17, 2006]{.underline}, hearing aid
    compatibility compliance report detailed information that describes
    and discusses with specificity the status of its efforts to offer
    dual-band GSM handsets that achieve a rating of U3 or higher in the
    850 MHz band in addition to the 1900 MHz band.

3.  Cingular must file an additional report with the Commission no later
    than [February 1, 2006]{.underline}. This report must include
    detailed information that describes and discusses with specificity
    the status of its efforts to offer dual-band GSM handsets that
    achieve a rating of U3 or higher in the 850 MHz band in addition to
    the 1900 MHz band.[^65]

-   [Consumer Outreach]{.underline}

1.  Cingular and any other entity that avails itself of the relief
    afforded by this order must ensure a thirty-day trial period or
    otherwise adopt an acceptable, flexible return policy for consumers
    seeking to obtain hearing aid-compatible GSM digital wireless
    handsets. In addition, such entity must include detailed information
    in its [November 17, 2005]{.underline}, and [May 17,
    2006]{.underline}, hearing aid compatibility compliance reports that
    describes and discusses with specificity efforts to ensure a
    thirty-day trial period or otherwise flexible return policy for
    consumers seeking to obtain hearing aid-compatible GSM digital
    wireless handsets. We note that this condition makes mandatory one
    of the outreach efforts described by the Commission in the *Hearing
    Aid Compatibility Order*[^66] and further discussed in the *Hearing
    Aid Compatibility Reconsideration Order*.[^67] Also, this condition
    is consistent with the requirement that compliance reports provide
    information regarding "outreach efforts."[^68]

2.  Cingular and any other entity that avails itself of the relief
    afforded by this order must take reasonable efforts to make
    available current technical and anecdotal information for access by
    the public regarding the hearing aid compatibility of specific GSM
    digital wireless handsets. In addition, such entity must include
    detailed information in its [November 17, 2005]{.underline}, and
    [May 17, 2006]{.underline}, hearing aid compatibility compliance
    reports that describes and discusses with specificity efforts to
    comply with this condition. We note that this condition is
    consistent with the outreach efforts described by the Commission in
    the *Hearing Aid Compatibility Order*,[^69] as well as the
    requirement that compliance reports provide information regarding
    "outreach efforts."[^70]

# ordering clauses

24. Accordingly, pursuant to Sections 1 and 4(i) of the Communications
    Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i), and Section 1.925
    of the Commission's rules, 47 C.F.R. § 1.925, IT IS ORDERED that the
    waiver relief requested in the Letter from Thomas Goode, counsel to
    the Alliance for Telecommunications Industry Solutions, and in the
    Presentation of the HAC Incubator Working Group 9, filed on August
    1, 2005, IS GRANTED to the extent set forth herein.

25. IT IS FURTHER ORDERED that the Petition for Waiver of Section
    20.19(c)(3)(i)(A) of the Commission's Rules filed by Cingular
    Wireless LLC on August 5, 2005, IS GRANTED IN PART to the extent set
    forth herein.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

STATEMENT OF

COMMISSIONER MICHAEL J. COPPS

RE: 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).

Today's Order grants Cingular Wireless a limited waiver of our hearing
aid compatibility rules as they apply to wireless phones. It is with
some hesitation that I support this action. I have said before that
strong and clear rules are critical to accomplishing the statutory goal
of ensuring that our Nation's telecommunication networks are accessible
to Americans with hearing loss. Nonetheless I understand that
technological difficulties have emerged for wireless phones operating in
the 850 MHz band. Advocates for the hearing loss community have
expressed support for Cingular's request---and I am satisfied that
Cingular and other participants in the Hearing Aid Compatibility
Incubator Program have been working in good faith to solve this problem
quickly.

I support today's limited waiver because it moves us closer to the goal
of ensuring that Americans with hearing disabilities have access to
digital wireless services. In granting this limited waiver, we have
insisted on regular updates to the FCC on the progress made to develop a
solution for wireless phones that operate in the 850 MHz band. I will
monitor that progress closely---and expect complete resolution by the
firm deadline we have set of August 1, 2006. By that time, nationwide
carriers that operate in the 850 MHz band---either on their own networks
or through roaming agreements---should have hearing aid compatible
phones available to consumers that work in that band.

We have made the relief granted today available to other wireless
carriers, service providers and handset manufacturers. T-Mobile has
already requested similar action, and may avail itself of today's
limited waiver. I am encouraged that the wireless industry has been
engaging in a dialogue with advocates for the millions of Americans with
hearing disabilities so that solutions can be found for hearing aid
compatibility.

[^1]: The Global System for Mobile Communications (GSM) is a digital air
    interface for wireless systems that divides each wireless channel
    into eight discrete time slots, which allows up to eight
    simultaneous calls using the same frequency.

[^2]: Letter from Thomas Goode, counsel to the Alliance for
    Telecommunications Industry Solutions and Presentation of the HAC
    Incubator Working Group 9, to Marlene H. Dortch, Secretary, FCC, WT
    Docket No. 01-309 (filed Aug. 1, 2005) (Working Group 9
    Recommendation).

[^3]: *See id*. at 3 ("\[t\]he 1900 MHz band HAC rating should be
    accepted as the overall rating for all dual band wireless
    devices\[\]"). In a subsequent *ex parte* letter, ATIS recommended
    that the Commission accept the 1900 MHz rating as the overall rating
    for dual-band wireless devices employing a GSM air interface. *See*
    Letter from Thomas Goode, counsel to the Alliance for
    Telecommunications Industry Solutions, to Marlene H. Dortch,
    Secretary, FCC, WT Docket No. 01-309 (filed Aug. 26, 2005) at 2.

[^4]: Cingular Wireless LLC Petition for Waiver of Section
    20.19(c)(3)(i)(A) of the Commission's Rules, WT Docket No. 01-309
    (filed Aug. 5, 2005) (Cingular Waiver Request).

[^5]: In 2002, the Commission defined Tier I wireless carriers as the
    six wireless carriers with national footprints (AT&T Wireless,
    Cingular Wireless, Nextel Communications, Sprint PCS, Verizon
    Wireless, and T-Mobile USA). *See* Revision of the Commission's
    Rules to Ensure Compatibility with Enhanced 911 Emergency Calling
    Systems, CC Docket No. 94-102, *Order to Stay*, 17 FCC Rcd 14841,
    14843 ¶ 7 (2002). Since that time, the Commission consented to
    Cingular Wireless' acquisition of AT&T Wireless. *See* Applications
    of AT&T Wireless Services, Inc. and Cingular Wireless Corp. for
    Consent to Transfer of Control of Licenses and Authorizations, WT
    Docket Nos. 04-70, 04-254, 04-323, *Memorandum Opinion and Order*,
    19 FCC Rcd 21522 (2004). More recently, the Commission consented to
    the transfer of control of all licenses and authorizations held
    directly and indirectly by Nextel to Sprint Corporation. *See*
    Applications of Nextel Communications, Inc. and Sprint Corp. for
    Consent to Transfer Control of Licenses and Authorizations, WT
    Docket No. 05-63, *Memorandum Opinion and Order*, FCC 05-148 (rel.
    Aug. 8, 2005).

[^6]: *See* Cingular Waiver Request at 21-22. *See also* 47 C.F.R. §
    20.19(c)(3)(i)(A); 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 11194 (2005) (*Hearing Aid Compatibility
    Reconsideration Order*) at 11232 App. B.

[^7]: *See* T-Mobile USA, Inc. Petition for Waiver of Section
    20.19(c)(3) of the Commission's Rules, WT Docket No. 01-309 (filed
    Aug. 26, 2005). We will address the T-Mobile request separately.

[^8]: 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 (2003); *Erratum*, WT Docket No. 01-309, 18 FCC Rcd
    18047 (2003) (*Hearing Aid Compatibility Order*).

[^9]: *See id.* at 16776-79 ¶¶ 55-64. *See also* 47 C.F.R. §
    20.19(b)(1)-(2).

[^10]: *Hearing Aid Compatibility Order*, 18 FCC Rcd at 16777 ¶ 57.

[^11]: *See id*. at 16780 ¶ 65. *See also* 47 C.F.R. § 20.19(c).

[^12]: *See* 47 C.F.R. § 20.19(e)(1)-(2). The *de minimis* exception
    applies on a per air interface basis and provides that manufacturers
    or mobile service providers that offer two or fewer digital wireless
    handsets in the U.S. are exempt from the requirements of the hearing
    aid compatibility rules. For mobile service providers that obtain
    handsets only from manufacturers that offer two or fewer digital
    wireless handset models in the U.S., the service provider would
    likewise be exempt from the requirements. Manufacturers or mobile
    service providers that offer three digital wireless handset models
    must offer at least one compliant handset model. Mobile service
    providers that obtain handsets only from manufacturers that offer
    three digital wireless handset models in the U.S. are required to
    offer at least one compliant handset model.

[^13]: *See* 47 C.F.R. § 20.19(c)*.*

[^14]: OET Clarifies Use of Revised Wireless Phone Hearing Aid
    Compatibility Standard Measurement Procedures and Rating
    Nomenclature, *Public Notice*, 20 FCC Rcd 8188 (OET 2005). We note
    that the new draft standard uses an "M" rating for RF interference
    immunity, rather than a "U." For purposes of this Memorandum Opinion
    and Order, we regard the M and U rating nomenclature as synonymous.

[^15]: *Id*. at 8188.

[^16]: *Id*. at 8189.

[^17]: *See* *Hearing Aid Compatibility Reconsideration Order*, 18 FCC
    Rcd at 11208-09 ¶¶ 26-27.

[^18]: *See* *id*. at 11232 App. B. *See also* 47 C.F.R. § 20.19(b)(1),
    which provides that a wireless handset used for public mobile radio
    services is hearing aid-compatible if it meets, at a minimum, a U3
    rating for radio frequency interference.

[^19]: *See* 47 C.F.R. § 20.19(c)(1)(i).

[^20]: *See* 47 C.F.R. § 20.19(c)(2)(i).

[^21]: Working Group 9 Recommendation at 3.

[^22]: *Id*. at 1.

[^23]: *Id*.

[^24]: *Id*. at 3.

[^25]: Cingular Waiver Request at 29.

[^26]: *Id*. at 4-16. The ANSI C63.19 standard requires wireless phones
    using the GSM air interface to have lower emissions than wireless
    phones that use other air interfaces because GSM uses time division
    that switches at a rate that falls within the audio spectrum.
    Manufacturers participating in the ATIS Incubator have indicated
    that they are able to meet the stricter standard for GSM at 1900
    MHz, but are unable to do so at 850 MHz without degrading the
    performance of the phone. The manufacturers contend that the
    emissions mitigation techniques, such as shielding, are not
    sufficiently effective at 850 MHz due in part to the longer
    wavelength. While the transmitter power could be reduced to achieve
    compliance, this would result in the phone not operating as reliably
    as a full power phone. Other measures, such as increasing the
    thickness of the phone to reduce emissions at the earpiece, would
    make the phone less convenient to carry and operate.

[^27]: *Id*. at 24.

[^28]: *See id.* at 24-26.

[^29]: *See id*. at 29-30.

[^30]: Comments of the Hearing Industries Association, WT Docket No.
    01-309 (filed Aug. 11, 2005) (HIA Comments) at 1.

[^31]: Comments of Self Help for Hard of Hearing People (SHHH), WT
    Docket No. 01-309 (filed Aug. 18, 2005) (SHHH Comments) at 1 n.1.

[^32]: The Commission's waiver rules require the proponent to show that:
    (i) the underlying purpose of the rule would not be served or would
    be frustrated by its application to the instant case, and grant of
    the waiver would be in the public interest; or (ii) in view of the
    unique or unusual factual circumstances of the specific situation,
    application of the rule would be inequitable, unduly burdensome or
    contrary to the public interest, or the entity requesting the waiver
    has no reasonable alternative. *See* 47 C.F.R. §§ 1.3, 1.925. *See
    also* *WAIT Radio v. FCC*, 418 F.2d 1153 (D.C. Cir. 1969), *appeal
    after remand*, 459 F.2d 1203 (D.C. Cir. 1972), *cert. denied*, 409
    U.S. 1027 (1972); *see also Northeast Cellular Tel. Co. v. FCC*, 897
    F.2d 1164 (D.C. Cir. 1990) (a waiver of the Commission's rules may
    be granted in instances where the particular facts make strict
    compliance inconsistent with the public interest if applied to the
    petitioner and when the relief requested would not undermine the
    policy objective of the rule in question).

[^33]: Working Group 9 Recommendation at 19.

[^34]: *See id*.

[^35]: *See* SHHH Comments at 3.

[^36]: HIA Comments at 3.

[^37]: *See* Working Group 9 Recommendation at 2.

[^38]: *See id*.

[^39]: *See id.* at 14 (committing to undertake "follow-up field
    study").

[^40]: *See id.* at 20.

[^41]: *See* HIA Comments at 2; SHHH Comments at 2.

[^42]: HIA Comments at 3.

[^43]: SHHH Comments at 3.

[^44]: *See id.* at 2 (stating that SHHH members "do not support any
    handset being exempted from the rule\[\]").

[^45]: *See* 47 C.F.R. §§ 20.19(c)(1)-(2).

[^46]: *See* SHHH Comments at 3 (raising and dismissing several
    possibilities offered by Cingular, including hands-free devices,
    devices with specialized volume controls, and introduction of
    devices with a low power option).

[^47]: Cingular Waiver Request at 29.

[^48]: *See* HIA Comments at 2-3 ("\[w\]hile there may be reason over
    the long term to adjust the C63.19 standard, as there is to adjust
    any standard over time as technology progresses, it is very
    important to keep the ball rolling ... \[a\]ccordingly, any relief
    that the Commission sees fit to grant should be in the nature of a
    narrow rule waiver\[\]"). *See also* SHHH Comments at 2 ("a fixed
    term waiver will place all affected parties (manufacturers, service
    providers, ATIS and ANSI) on notice of the Commission's insistence
    that any changes that turn out to be necessary in the C63.19
    standard be adopted promptly\[\]").

[^49]: *See* Cingular Waiver Request at 3-16. We also disagree with
    Cingular's contention, set forth in a footnote, that Section
    710(b)(3) of the Hearing Aid Compatibility Act, 47 U.S.C. §
    610(b)(3), which allows the Commission a means to waive hearing aid
    compatibility requirements for new technologies or services, is
    applicable in the instant case. *See* Cingular Waiver Request at
    16-17 n.50. On its face, this provision applies to "new telephones,
    or telephones associated with a new technology or service\[,\]" 47
    U.S.C. § 610(b)(3), and Congress explained that this provision
    "applies to 'new' telephones, *i.e*., those that employ a technology
    that has not previously been marketed, and telephones associated
    with a new technology or service." S. Rep. No. 100-391 at 7 (1988).
    Yet, Cingular admits that "GSM technology in itself is not new\[.\]"
    Cingular Waiver Request at 17 n.50. Moreover, in describing the
    intent surrounding this provision, Congress stated, "\[t\]he
    Commission may not waive the compatibility requirements for any
    essential telephone." H.R. Rep. No. 100-674 (1988) at 13. In this
    regard, the Commission and Congress have recognized that access to
    telecommunications is essential for participation in nearly all
    aspects of society. *See Hearing Aid Compatibility Order*, 18 FCC
    Rcd at 16782 ¶ 72, citing Implementation of Sections 255 and
    251(a)(2) of the Communications Act of 1934, As Enacted by the
    Telecommunications Act of 1996: Access to Telecommunications
    Service, Telecommunications Equipment and Customer Premise Equipment
    by Persons With Disabilities, WT Docket No. 96-198, *Report and
    Order*, 16 FCC Rcd 6417, 6420 (1999). Furthermore, in initially
    implementing the hearing aid compatibility rules for digital
    wireless carriers, the Commission sought to ensure that individuals
    with disabilities are not left behind as digital technology --
    including GSM -- evolves to improve upon the delivery of essential
    telecommunications service. *See Hearing Aid Compatibility Order*,
    18 FCC Rcd at 16768-69 ¶ 36.

[^50]: *See* HIA Comments at 2-3.

[^51]: *See* Cingular Waiver Request at 5-11. Cingular asserts that the
    Commission "imposed the U3 obligation for all air interface
    protocols in spite of record evidence that meeting the obligation
    would be difficult." *Id*. at 5. Cingular also argues that advances
    in hearing aid manufacturing "call into question whether the current
    standard is a meaningful indicator of usability." *Id*. at 9.

[^52]: *See Hearing Aid Compatibility Reconsideration Order*, 20 FCC Rcd
    at 11200-03 ¶¶ 9-16.

[^53]: *See* Cingular Waiver Request at 13-16 (citing Cingular's recent
    testing and concluding that the articulation weighting factor of
    C63.19 must be revisited).

[^54]: *See id.* at 30.

[^55]: *See* HIA Comments at 3.

[^56]: *Id*.

[^57]: SHHH Comments at 2.

[^58]: *See id*.

[^59]: *See* 47 C.F.R. §§ 20.19(b)(3); 47 C.F.R. § 2.1033.

[^60]: *See* 47 C.F.R. §§ 20.19(c)(2)-(3).

[^61]: *See* 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 (WTB 2004).

[^62]: Specifically, reporting obligation three applies only to
    Cingular. *See supra* ¶ 19 (setting forth Cingular's offer to report
    to the Commission the status of ongoing testing efforts by March
    2006). Reporting obligations one and two apply to Cingular and any
    other entity that avails itself of the relief afforded by this
    order. Both consumer outreach obligations apply to Cingular and any
    other entity that avails itself of the relief afforded by this
    order.

[^63]: *See* SHHH Comments at 2-3. *See also* 47 C.F.R. § 20.19(b)(2).

[^64]: *Hearing Aid Compatibility Order*, 18 FCC Rcd at 16787 ¶ 89.
    *See* OMB Control No. 3060-0999.

[^65]: *See supra* n.62.

[^66]: *See* *id.* at 16788 ¶ 93.

[^67]: *See* *Hearing Aid Compatibility Reconsideration Order*, 20 FCC
    Rcd at 11213 ¶ 40.

[^68]: *Hearing Aid Compatibility Order*, 18 FCC Rcd at 16787 ¶ 89.

[^69]: *See* *id*. at 16787-88 ¶ 92.

[^70]: *Id*. at 16787 ¶ 89.