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 Federal  Communications  Commission  FCC  05-  122 
 Before  the  FEDERAL  COMMUNICATIONS  COMMISSION 
 WASHINGTON,  D.  C.  20554 


 In  the  Matter  of 
 Section  68.4(  a)  of  the  Commissions  Rules  Governing  Hearing  Aid-  Compatible  Telephones 
 )  ) 
 )  ) 
 ) 
 WT  Docket  No.  01-  309 


 ORDER  ON  RECONSIDERATION  AND 
 FURTHER  NOTICE  OF  PROPOSED  RULEMAKING 
 Adopted:  June  9,  2005  Released:  June  21,  2005 
 Comment  Date:  60  days  after  publication  in  the  Federal  Register  Reply  Comment  Date:  90  days  after  publication  in  the  Federal  Register 


 By  the  Commission:  Commissioners  Abernathy,  Copps  and  Adelstein  issuing  statements. 
 TABLE  OF  CONTENTS 
 Heading  Paragraph  # 
 I.  INTRODUCTION..................................................................................................................................  1  II.  EXECUTIVE  SUMMARY....................................................................................................................  2 
 III.  BACKGROUND....................................................................................................................................  4  IV.  ORDER  ON  RECONSIDERATION  .....................................................................................................  9 
 A.  ANSI  C63.19  Performance  Levels  as  the  Established  Technical  Standard  .....................................  9  B.  Preliminary  Handset  Deployment  Benchmark  for  Tier  I  Wireless  Carriers  ..................................  17 
 C.  Fifty  Percent  Handset  Deployment  Benchmark.............................................................................  28  D.  Labeling  of  Hearing  Aid-  Compatible  Digital  Wireless  Handsets..................................................  31 
 E.  Live,  In-  Store  Consumer  Testing  of  Digital  Wireless  Handsets....................................................  37  F.  Compliance  Reporting  Obligations................................................................................................  41 
 G.  TDMA  Carrier  Compliance  with  the  Preliminary  Handset  Deployment  Benchmark  ...................  46  H.  The  De  Minimis  Exception  for  Digital  Wireless  Carriers,  Service  Providers  and  Handset 
 Manufacturers  ................................................................................................................................  51  I.  Enforcement  of  Hearing  Aid  Compatibility  Matters  .....................................................................  54 
 V.  FURTHER  NOTICE  OF  PROPOSED  RULEMAKING.....................................................................  61  A.  Extending  the  Obligation  to  Provide  Live,  In-  Store  Consumer  Testing........................................  62 
 B.  Narrowing  the  De  Minimis  Exception  ...........................................................................................  66  VI.  CONCLUSION  ....................................................................................................................................  67 
 VII.  PROCEDURAL  MATTERS................................................................................................................  68  A.  Comment  Filing  Procedures  ..........................................................................................................  68 
 B.  Ex  Parte  Presentations  ...................................................................................................................  70  C.  Regulatory  Flexibility  Act  .............................................................................................................  71 
 D.  Paperwork  Reduction  Analysis......................................................................................................  77  VIII.  ORDERING  CLAUSES................................................................................................................  79 
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 APPENDICES:  Appendix  A    Parties 
 Appendix  B    Final  Rules  Appendix  C    Initial  Regulatory  Flexibility  Analysis 
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 hearing.  5  In  this  regard,  the  HAC  Act  required  the  Commission  to  establish  regulations  to  ensure  that  certain  essential  telephones  enumerated  in  the  HAC  Act  would  provide  internal  means  for  effective 
 use  with  hearing  aids  designed  to  be  compatible  with  telephones  that  meet  established  technical  standards  for  hearing  aid  compatibility.  6  Congress  also  required  the  Commission  to  establish  requirements  for  the 
 labeling  of  packaging  materials  to  provide  adequate  information  to  consumers  regarding  the  compatibility  between  telephones  and  hearing  aids,  7  and  to  delegate  to  the  states  the  authority  to  enforce  compliance 
 with  the  Commissions  hearing  aid  compatibility  regulations  if  adopted  by  the  state.  8 
 5.  Congress  specifically  exempted  telephones  used  with  public  mobile  services  (i.  e.,  wireless  phones)  from  the  essential  telephones  designation.  9  At  that  time,  Congress  considered  wireless  phones 


 to  be  secondary  or  complementary,  rather  than  essential  telephones.  10  To  ensure  that  the  HAC  Act  kept  pace  with  the  evolution  of  telecommunications,  however,  Congress  granted  the  Commission  a  means  to 
 revoke  or  limit  the  exemption  for  wireless  telephones.  11  Indeed,  the  statute  requires  the  Commission  to  periodically  assess  the  appropriateness  of  continuing  Congress  original  exemptions.  12 


 6.  On  August  14,  2003,  the  Commission  released  the  Hearing  Aid  Compatibility  Order,  finding,  among  other  things,  that  the  statutory  criteria  to  lift  the  exemption  for  wireless  telephones  had  been  met.  13 
 Specifically,  the  Commission  determined  that  continuation  of  Congress  exemption  for  wireless  telephones  would  have  an  adverse  effect  on  individuals  with  hearing  disabilities,  14  and  that  revoking  the 
 exemption  was  technologically  feasible  15  and  in  the  public  interest.  16  The  Commission  further  determined  that  compliance  with  hearing  aid  compatibility  requirements  would  not  increase  the  costs  of  [wireless] 
 phones  to  such  an  extent  that  they  could  not  be  successfully  marketed.  17 
 7.  Based  upon  these  findings,  the  Commission  established  requirements  for  hearing  aid 


 5  47  U.  S.  C.    610(  a). 
 6  Id.    610(  b)(  1)(  B).  Congress  defined  essential  telephones  as  only  coin-  operated  telephones,  telephones 
 provided  for  emergency  use,  and  other  telephones  frequently  needed  for  use  by  persons  using  [compatible]  hearing  aids.  Id.    610(  b)(  4)(  A).  We  note  that  the  HAC  Act  precluded  the  Commission  from  requiring  retrofitting  of 


 equipment  to  achieve  compatibility,  except  for  coin-  operated  telephones  and  telephones  provided  for  emergency  use.  See  id.    610(  f). 


 7  See  id.    610(  d). 
 8  See  id.    610(  h). 
 9  Id.    610(  b)(  2)(  A)(  i). 
 10  See  House  Report  at  9. 
 11  See  47  U.  S.  C.    610(  b)(  2)(  C)  (to  revoke  or  otherwise  limit  the  exemptions,  the  Commission  must  determine 
 that:  (1)  such  revocation  or  limitation  is  in  the  public  interest;  (2)  continuation  of  the  exemption  without  such  revocation  or  limitation  would  have  an  adverse  effect  on  individuals  with  hearing  disabilities;  and  (3)  compliance 


 with  the  rule  is  technologically  feasible,  and  would  not  increase  costs  to  such  an  extent  that  the  telephones  could  not  be  successfully  marketed). 


 12  See  id.    610(  b)(  2)(  C). 
 13  See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16764  -75    26-  52. 
 14  See  id.  at  16766-  68    30-  34. 
 15  See  id.  at  16769-  75    38-  52. 
 16  See  id.  at  16768-  69    35-  37. 
 17  Id.  at  16775    50.  See  also  47  U.  S.  C.    610(  b)(  2)(  C)(  iv). 
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 compatibility  of  digital  wireless  phones.  First,  the  Commission  adopted  the  ANSI  C63.19  performance  levels  as  the  applicable  technical  standard.  18  Second,  the  Commission  established  specific,  phased-  in 
 deployment  benchmarks  for  digital  wireless  handset  manufacturers,  wireless  carriers  and  service  providers  offering  digital  wireless  services.  19  Third,  the  Commission  implemented  a  framework  for 
 labeling  and  live,  in-  store  consumer  testing  of  digital  wireless  handsets,  as  well  as  an  obligation  to  report  on  handset  deployment  progress.  20  Fourth,  the  Commission  adopted  a  de  minimis  exception,  which 
 relieves  wireless  carriers,  service  providers  and  handset  manufacturers  that  offer  two  or  fewer  digital  wireless  handsets  in  the  United  States  from  the  hearing  aid  compatibility  compliance  obligations.  21 
 Finally,  consistent  with  the  requirements  set  forth  in  the  HAC  Act,  22  the  Commission  expanded  the  scope  of  its  rules  for  enforcing  wireline  hearing  aid  compatibility  to  permit  subscribers  to  digital  wireless 
 services  to  file  informal  complaints  in  the  event  that  handset  manufacturers  or  wireless  service  providers  fail  to  comply  with  the  hearing  aid  compatibility  rules.  23 


 8.  The  Commission  received  four  petitions  for  reconsideration  in  response  to  the  Hearing  Aid  Compatibility  Order.  24  The  petitions  seek  reconsideration,  clarification,  or  both,  of  the  Commissions 


 18  See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16776-  79    55-  64.  See  also  47  C.  F.  R.    20.  19(  b)(  1)-(  2). 
 In  this  regard,  the  Commission  required  that  certain  digital  wireless  handsets  must  provide  reduced  radio  frequency  (RF)  interference  (i.  e.,  the  wireless  telephones  must  meet  a  U3  rating  under  the  ANSI  technical  standard)  and 


 telecoil  coupling  capability  (i.  e.,  the  wireless  handsets  must  meet  a  U3T  rating  under  the  ANSI  technical  standard).  See  id.  at  16777    56.  We  note  that  telecoil  coupling  is  also  known  as  inductive  coupling.  We  further  note  that 
 the  2005  draft  version  of  the  ANSI  C63.19  technical  standard  uses  different  letter  designations  for  hearing  aid  compatibility  compliance.  See  Letter  from  Thomas  Goode,  counsel  for  The  Alliance  for  Telecommunications 
 Industry  Solutions,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WT  Docket  No.  01-  309  (filed  May  6,  2005)  (ATIS  May  6,  2005  Letter).  Specifically,  the  new  draft  standard  uses  an  M  rating  for  RF  interference  immunity  (rather  than 
 U)  and  a  T  rating  for  coupling  capability  (rather  than  UT).  See  id.  19 
 See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16780-  85    65-  81.  See  also  47  C.  F.  R.    20.  19(  c)-(  d).  The  Commission  required  that,  by  September  16,  2005,  each  digital  wireless  handset  manufacturer  must  make 


 available  to  wireless  carriers  and  each  wireless  carrier  providing  digital  wireless  services  must  make  available  to  consumers  at  least  two  handsets  for  each  air  interface  it  offers,  which  provide  the  reduced  RF  emissions  (U3  rating) 
 necessary  to  enable  acoustic  coupling  without  interference.  Also  by  September  16,  2005,  each  Tier  I  wireless  carrier  providing  digital  wireless  services  must  make  available  to  consumers  at  least  two  handsets  for  each  air  interface  it 
 offers  to  provide  reduced  RF  emissions  (U3  rating),  or  twenty-  five  percent  of  the  total  number  of  handsets  it  offers,  whichever  is  greater.  The  Commission  further  required  that,  by  September  16,  2006,  each  digital  wireless  handset 
 manufacturer  must  make  available  to  wireless  carriers,  and  each  wireless  carrier  providing  digital  wireless  services  must  make  available  to  consumers,  at  least  two  handset  models  for  each  air  interface  it  offers  that  provide  telecoil 
 (inductive)  coupling  (U3T  rating).  Finally,  the  Commission  adopted  a  de  minimis  exception  to  these  benchmarks  for  certain  digital  wireless  handset  manufacturers  and  wireless  carriers.  See  Hearing  Aid  Compatibility  Order,  18  FCC 
 Rcd  at  16775-  76    53.  See  also  47  C.  F.  R.    20.  19(  e)(  1)-(  2).  20 
 See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16785-  87    82-  91.  21 
 See  id.  at  16781    69  (also  specifying  that  wireless  carriers,  service  providers  and  handset  manufacturers  that  offer  three  digital  wireless  handset  models  must  offer  at  least  one  compliant  handset  by  September  16,  2005).  See  also  47 


 C.  F.  R.    20.  19(  e)(  1)-(  2).  22 
 See  47  U.  S.  C.    610(  h).  23 
 See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16789    95.  24 
 See  Petition  for  Reconsideration  and  Clarification  of  the  Cellular  Telecommunications  and  Internet  Association,  WT  Docket  No.  01-  309  (filed  Oct.  20,  2003)  (Corrected  Version)  (CTIA  Petition);  Petition  for  Reconsideration  of 


 Research  In  Motion  Limited,  WT  Docket  No.  01-  309  (filed  Oct.  16,  2003)  (RIM  Petition);  Petition  for  Reconsideration  of  the  TDMA  Carriers  and  Rural  Telecommunications  Group,  Inc.,  WT  Docket  No.  01-  309  (filed 
 Oct.  16,  2003)  (TMDA  Carriers  and  RTG  Petition);  Petition  for  Reconsideration  of  Verizon  Wireless,  WT  Docket  (continued.) 
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 decisions  to:  (a)  adopt  the  ANSI  C63.19  technical  standard  for  hearing  aid  compatibility;  (b)  establish  a  preliminary  deployment  benchmark  exclusive  to  Tier  I  wireless  carriers;  25  (c)  establish  a  fifty  percent 
 handset  deployment  benchmark;  (d)  require  labeling  and  live,  in-  store  consumer  testing  of  digital  wireless  handset  models;  (e)  impose  compliance  reporting  obligations;  (f)  institute  deployment  benchmarks  for 
 wireless  carriers  employing  a  TDMA  air  interface;  (g)  adopt  a  de  minimis  exception  for  digital  wireless  carriers,  service  providers  and  handset  manufacturers;  and  (h)  delegate  authority  to  enforce  hearing  aid 
 compatibility  of  wireless  phones  to  the  states.  Our  disposition  of  these  matters  is  detailed  in  Section  IV.,  below.  Our  Further  Notice  of  Proposed  Rulemaking,  which  seeks  comment  on  extending  the  live,  in-store 
 consumer  testing  requirement  and  narrowing  the  de  minimis  exception,  is  set  forth  in  Section  V.,  below. 


 IV.  ORDER  ON  RECONSIDERATION 
 A.  ANSI  C63.19  Performance  Levels  as  the  Established  Technical  Standard 
 9.  Background.  As  noted  earlier,  in  the  Hearing  Aid  Compatibility  Order,  the  Commission  adopted  the  performance  levels  contained  in  the  ANSI  C63.19  technical  standard  as  the  basis  for  ensuring 


 hearing  aid  compatibility  of  digital  wireless  handsets.  In  finding  that  this  technical  standard  met  the  established  requirement  set  forth  in  the  HAC  Act,  26  the  Commission  analyzed  and  relied  on  numerous 
 submissions  supporting  ANSI  C63.19  as  an  established  technical  standard.  27  ANSI,  along  with  the  expert  entities  that  informed  the  Commissions  decision-  making  process,  elected  to  develop  the  standard  as  one 
 that  measures  performance,  rather  than  one  that  would  establish  a  firm  build-  to  requirement.  28  Based  on  the  record,  the  Commission  determined  that  this  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.  29  The  Commission  ruled  that  adoption  of  ANSI  C63.19  served 


 (Continued  from  previous  page)  No.  01-  309  (filed  Oct.  16,  2003)  (Verizon  Petition).  A  listing  of  related  pleadings  is  set  forth  in  Appendix  A  to  this 
 Order  on  Reconsideration.  See  also  FCC  Petitions  for  Reconsideration  and  Clarification  of  Action  in  Rulemaking  Proceeding,  68  FR  64625  (2003);  Wireless  Telecommunications  Bureau  Seeks  Comment  on  Petitions  for 
 Reconsideration  and/  or  Clarification  of  the  Hearing  Aid  Compatible  Telephones  Report  and  Order,  WT  Docket  No.  01-  309,  Public  Notice,  19  FCC  Rcd  3886  (2004). 


 25  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  Commissions  Rules  to  Ensure  Compatibility  with  Enhanced  911  Emergency  Calling  Systems, 


 CC  Docket  No.  94-  102,  Order  to  Stay,  17  FCC  Rcd  14841  (2002)  (Non-  Nationwide  Carriers  Order)  at  14843    7.  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  announced  that  Nextel  and  Sprint  PCS  have  sought  the  Commissions  consent  to  transfer  control  of  licenses  and  authorizations.  See  Nextel  Communications,  Inc.  and  Sprint  Corporation 
 Seek  FCC  Consent  To  Transfer  Control  of  Licenses  and  Authorizations,  WT  Docket  No.  05-  63,  Public  Notice,  20  FCC  Rcd  4119  (2005). 


 26  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[]).  27 
 See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16770-  71    43.  In  its  comments,  ANSI  noted  that  ANSI  Accredited  Standards  Committee  C63,  which  devised  and  adopted  ANSI  C63.19,  made  efforts  to  assure  that  all 


 materially  affected  interests  were  represented    and  that  the  standard  represented  the  best  technical  consensus  available  at  the  time  of  publication.  ANSI  Comments  at  2. 
 28  See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16779    63. 
 29  See  id.  at  16776    55. 
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 the  public  interest  because  the  manufacture  of  digital  wireless  handsets  comporting  with  this  standard  would  ensure  that  a  greater  number  of  hearing  aid  and  coclear  implant  users  will  be  able  to  find  digital 
 wireless  phones  that  will  work  for  them.  30 
 10.  The  Commission  also  recognized  that  alternative  approaches  toward  achieving  hearing  aid  compatibility  should  be  explored,  and  encouraged  activity  as  part  of  an  evolutionary  process  that  would 


 ultimately  lead  to  increased  wireless  communications  accessibility  for  individuals  with  hearing  disabilities.  31  In  this  regard,  the  Commission  stated  that  it  would  continue  to  play  an  active,  ongoing  role 
 in  matters  relating  to  the  hearing  aid  compatibility  of  digital  wireless  handsets,  expressed  its  willingness  to  consider  alternatives  to  the  ANSI  C63.19  technical  standard,  and  delegated  to  the  Chief,  Wireless 
 Telecommunications  Bureau  (Wireless  Bureau),  in  coordination  with  the  Chief,  Office  of  Engineering  and  Technology  (OET),  the  authority  to  approve  future  versions  of  the  standard.  32  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.  33 


 11.  In  its  petition  for  reconsideration,  CTIA  requests  that  the  Commission  stay  and  reconsider  the  decision  to  adopt  the  ANSI  C63.19  technical  standard.  34  CTIA  argues  that  the  ANSI  C63.19  technical 
 standard  is  not  fixed,  35  and  alleges  that  the  Commissions  action  to  adopt  the  standard  was  premature  because  it  would  prevent  standards-  setting  bodies  from  completing  their  work.  36  CTIA  adds  that  the 
 ANSI  C63.19  technical  standard  should  be  transformed  from  a  performance  measurement  standard  into  a  build-  to  standard.  37  In  its  comments,  T-  Mobile  states  that  CTIAs  request  for  reconsideration  of  the 
 Commissions  decision  to  adopt  ANSI  C63.19  is  unnecessary  given  the  Commissions  role  in  the  standards-  setting  process  and  the  policy  for  treating  future  requests  to  upgrade  the  standard  set  forth  in  the 
 Hearing  Aid  Compatibility  Order.  38  In  its  comments,  Self  Help  for  Hard  of  Hearing  People  (SHHH)  states  that  CTIA  presents  nothing  new  regarding  the  ANSI  standard  and  encourages  the  Commission  to 
 affirm  its  decision.  39  As  discussed  below,  we  deny  this  aspect  of  the  CTIA  Petition  and  affirm  the 
 30  Id.  at  16777    57. 
 31  See  id.  at  16774    49. 
 32  See  id.  at  16779    63. 
 33  See  id. 
 34  See  CTIA  Petition  at  6.  We  deny  CTIAs  request  that  the  Commission  stay  the  effective  date  of  the  rule  while  it 
 reconsiders  its  decision  on  this  specific  issue.  Id.  The  Commission  evaluates  requests  for  stay  under  well-  settled  principles.  To  support  a  stay,  a  petitioner  must  demonstrate  that:  (1)  it  is  likely  to  prevail  on  the  merits;  (2)  it  will 


 suffer  irreparable  harm  if  a  stay  is  not  granted;  (3)  other  interested  parties  will  not  be  harmed  if  the  stay  is  granted;  and  (4)  the  public  interest  favors  granting  a  stay.  See  Paxson  Communications  Corp.  v.  DIRECTV,  Inc.,  17  FCC 
 Rcd  10944,  10945  at    4  (2002),  citing  Virginia  Petroleum  Jobbers  Ass'n  v.  FPC,  259  F.  2d  921,  925  (D.  C.  Cir.  1958)  (per  curiam).  In  its  petition,  CTIA  has  not  addressed  any  of  the  necessary  criteria,  or  otherwise  provided 
 analysis  or  other  evidence  to  justify  a  stay  of  the  Commissions  adoption  of  the  ANSI  C63.  19  technical  standard.  35 
 See  CTIA  Petition  at  3.  36 
 See  id.  at  4.  37 
 See  id.  at  2.  We  note  that  a  performance  measurement  standard  omits  specific  instructions  and  provides  the  manufacturer  the  latitude  to  determine  how  to  best  meet  the  specified  needs.  On  the  other  hand,  a  build-  to 


 standard  specifies  detailed  requirements  such  as  materials  to  be  used,  how  a  requirement  is  to  be  achieved,  or  how  an  item  is  to  be  fabricated  or  constructed. 


 38  See  T-  Mobile  Comments  at  2-  3. 
 39  See  SHHH  Comments  at  2. 
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 Commissions  action  in  adopting  the  ANSI  C63.19  technical  standard. 
 12.  Discussion.  As  a  preliminary  matter,  we  disagree  with  CTIAs  contention  that  an  established  technical  standard  must  be  fixed.  40  The  implication  of  CTIAs  argument  is  that,  if  a  revision  to  a 


 standard  can  be  made,  it  is  not  an  established  standard.  As  ANSI  explains,  however,  technical  standards  are  living  documents  that  are  continuously  reviewed,  revised  and  updated  in  an  ongoing  effort  to  keep 
 them  current  and  to  ensure  their  continued  effectiveness.  41  In  fact,  ANSI  informs  us  that  its  bylaws  require  that  all  standards  be  reviewed  every  five  years,  at  a  minimum,  and  provide  the  means  to  withdraw 
 a  standard  if  it  is  not  revised  or  reaffirmed  within  ten  years.  42 
 13.  We  also  find  that  CTIAs  claims  that  the  Commission  acted  prematurely  in  adopting  ANSI  C63.19  are  without  merit.  The  Commissions  decision  to  adopt  ANSI  C63.19  as  an  established  technical 


 standard  included  a  means  to  ensure  the  standards  ongoing  effectiveness.  As  noted  by  T-  Mobile,  the  Commission  charted  a  flexible,  proactive  approach  that  considered  and  addressed  the  need  to  ensure  the 
 continued  viability  of  the  established  technical  standard  by  encouraging  ANSI  to  work  with  the  relevant  stakeholders  to  review  the  standard  periodically  to  determine  whether  improvements  are  warranted.  43  In 
 the  Hearing  Aid  Compatibility  Order,  the  Commission  forthrightly  acknowledged  that  the  technical  standard  presents  a  workable  approach[,]  44  and  recognized  that,  as  the  industry  engages  in  testing  and 
 design  work  geared  to  comply  with  the  performance  levels,  the  standard  may  need  to  be  revisited.  45  Moreover,  the  Commissions  analysis  recognized  that  some  wireless  industry  parties  had  asserted  that 
 ANSI  C63.19  was  not  a  perfect  tool  for  ensuring  that  any  given  hearing  aid  would  work  with  a  particular  wireless  phone,  46  and  that  future  techniques  for  coupling  hearing  aids  with  digital  wireless  phones  might 
 be  necessary.  47 
 14.  In  addition,  our  analysis  reveals  that  the  flexible  approach  set  forth  in  the  Hearing  Aid  Compatibility  Order  accommodates  CTIAs  request  that  stakeholders  have  the  ability  to  choose 


 alternatives  or  develop  proprietary  solutions.  48  Indeed,  under  the  current  procedure,  all  interested  stakeholders  have  benefited  from  the  flexibility  to  consider  different  yet  viable  approaches  toward 
 meeting  the  stipulated  reduced  RF  interference  and  telecoil  coupling  capability  under  the  ANSI  C63.19  technical  standard,  including  consideration  of  the  range  of  immunity  levels  of  hearing  aids  manufactured 
 in  the  United  States.  49  In  fact,  in  response  to  a  petition  submitted  by  ANSI  on  April  12,  2005,  50  OET 


 40  See  CTIA  Petition  at  3  (citing  no  authority  for  this  definition,  CTIA  contends  that,  in  the  context  of  a  standards 
 setting  process,  established  means  a  fixed,  proven  method  or  approach  to  a  technical  problem  wherein  if  one  uses  that  approach  to  build  and  design,  one  will  achieve  the  desired  result[]). 


 41  See  ANSI  Comments  at  2.  See  also  infra    15. 
 42  See  ANSI  Comments  at  2. 
 43  See  T-  Mobile  Comments  at  2-  3. 
 44  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16776    55. 
 45  See  id.  at  16774    49. 
 46  See  id.  at  16776    55. 
 47  See  id.  at  16779    63. 
 48  See  CTIA  Petition  at  4.  See  also  SHHH  Comments  at  4-  5  (explaining  that,  under  the  ANSI  C63.19  performance 
 standard,  there  may  be  many  solutions  to  meet  the  interference  requirements).  49 
 See  CTIA  Petition  at  5  (arguing  that  the  Commission  failed  to  consider  immunity  levels  of  hearing  aids  manufactured  in  the  United  States). 
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 expeditiously  clarified  that  it  would  accept  applications  for  certification  of  equipment  tested  and  rated  under  either  the  draft  updated  version  of  the  hearing  aid  compatibility  technical  standard,  ANSI  C63.19- 
 2005,  or  under  the  earlier  version  that  is  codified  in  the  Commissions  rules.  51  Thus,  CTIAs  claim  that  the  Commissions  adoption  of  ANSI  63.19  was  premature  ignores  the  numerous  measures  adopted  by  the 
 Commission  that  have  permitted  the  industry  to  play  an  active,  ongoing  role  to  ensure  its  continued  viability.  52 


 15.  We  further  determine  that  CTIA  has  not  made  a  sustainable  argument  for  converting  the  ANSI  C63.19  technical  standard  from  a  performance  standard  to  a  build-  to  standard.  We  affirm  the 
 Commissions  finding  that  the  performance  levels  set  forth  in  the  technical  standard  would  afford  handset  manufacturers  the  flexibility  to  continue  to  develop  and  offer  innovative  handsets  with  new  features, 
 while  simultaneously  ensuring  that  persons  with  hearing  disabilities  will  have  access  to  advanced  wireless  services.  53  Moreover,  to  the  extent  that  handset  manufacturers  and  other  relevant  stakeholders  wish  to 
 develop  a  build-  to  standard,  the  framework  for  such  an  undertaking  is  already  established,  and  nothing  in  our  rules  would  prevent  this  effort.  We  continue  to  believe  that  the  best  approach  is  to  maintain  the 
 flexibility  associated  with  the  performance  levels  set  forth  in  the  ANSI  technical  standard,  rather  than  to  dictate  or  otherwise  force  digital  wireless  handset  manufacturers  to  follow  specific,  detailed  instructions 
 for  achieving  the  requisite  hearing  aid  compatibility  requirements. 
 16.  Finally,  mindful  of  the  Commissions  obligation  to  ensure  that  the  standard  codified  in  the  rules  would  remain  viable,  and  in  light  of  the  status  of  the  work  ANSI  is  currently  undertaking,  we 


 reiterate  our  commitment  to  undertake  an  expeditious  review  of  the  final  version  of  the  ANSI  C63.19-  2005  technical  standard,  as  well  as  any  other  final  version  of  the  standard  developed  in  the  future,  either 
 on  our  own  motion  or  upon  request.  As  noted  earlier,  in  the  Hearing  Aid  Compatibility  Order,  the  Commission  delegated  authority  to  the  Chief  of  the  Wireless  Bureau,  in  coordination  with  the  Chief, 
 OET,  to  approve  future  final  versions  of  ANSI  C63.19  to  the  extent  that  the  changes  do  not  raise  major  compliance  issues.  54  Given  that  the  work  of  ANSI  and  the  HAC  Incubator  55  may  soon  result  in  adoption 
 of  a  final  version  of  the  updated  technical  standard,  56  the  Wireless  Bureau  and  OET  stand  ready  to  timely  review  and  analyze  the  final  version  of  the  new  standard  upon  request. 


 (Continued  from  previous  page)  50  See  Petition  of  American  National  Standards  Institute  Accredited  Standards  Committee  C63  (EMC) 
 Subcommittee  8  (Medical  Devices)  ANSI  ASC  C63  SC8,  WT  Docket  No.  01-  309  (filed  Apr.  12,  2005)  (ANSI  Request). 
 51  See  OET  Clarifies  Use  of  New  Wireless  Phone  Hearing  Aid  Compatibility  Standard  Measurement  Procedures 
 and  Rating  Nomenclature,  Public  Notice,  DA  05-  1134  (rel.  Apr.  25,  2005).  52 
 CTIA  also  asks  that  the  Commission  direct  the  FDA  to  evaluate  hearing  aid  immunity  data.  See  CTIA  Petition  at  6.  Our  jurisdiction  does  not  permit  us  to  direct  another  agency  to  undertake  evaluations  on  behalf  of  the 


 Commission.  Rather,  the  Commission  has  a  long  history  of  formally  and  informally  coordinating  with  other  government  agencies  when  matters  of  mutual  concern  arise.  In  fact,  the  collective  effort  between  the  Commission 
 and  the  FDA  contributed  to  the  adoption  of  the  Hearing  Aid  Compatibility  Order.  See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16786    55. 


 53  See  id.  at  16779    62. 
 54  See  id.  at  16779    63. 
 55  The  HAC  Incubator  is  a  technical  body  formed  by  the  industry  to  resolve  hearing  aid  compatibility  issues  via  a 
 fast  tracked  consensus  process.  Letter  from  Megan  L.  Campbell,  General  Counsel,  Alliance  for  Telecommunications  Industry  Solutions,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WT  Docket  No.  01-  309  (filed  Apr. 


 22,  2004)  at  1.  56 
 See  ANSI  Request  at  2-  3. 
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 B.  Preliminary  Handset  Deployment  Benchmark  for  Tier  I  Wireless  Carriers 
 17.  Background.  In  the  Hearing  Aid  Compatibility  Order,  the  Commission  found  that  wireless  service  has  evolved  to  become  increasingly  more  important  to  Americans  safety  and  quality  of  life,  and 


 recognized  the  corresponding  critical  need  for  individuals  with  hearing  disabilities  to  have  access  to  wireless  services.  57  In  light  of  these  findings,  the  Commission  took  targeted  actions  to  facilitate  the 
 congressional  goal  of  ensuring  access  to  telecommunications  services  for  individuals  with  hearing  disabilities.  Specifically,  the  Commission  required  that,  by  September  16,  2005,  each  digital  wireless 
 handset  manufacturer  must  make  available  to  wireless  carriers  and  each  wireless  carrier  providing  digital  wireless  services  must  make  available  to  consumers  at  least  two  reduced  RF  emissions  (U3  rating) 
 handsets  for  each  air  interface  it  offers  to  enable  acoustic  coupling  without  interference.  58  The  Commission  further  required  that,  by  September  16,  2005,  each  Tier  I  wireless  carrier  providing  digital 
 wireless  services  must  make  available  to  consumers  at  least  two  reduced  RF  emissions  (U3  rating)  handsets  for  each  air  interface  it  offers,  or  twenty-  five  percent  of  the  total  number  of  handsets  it  offers, 
 whichever  is  greater.  59  In  establishing  these  preliminary  handset  deployment  benchmarks,  the  Commission  sought  to  stimulate  progress  toward  achieving  hearing  aid  compatibility  of  digital  wireless 
 telephones.  60 
 18.  CTIA  and  Verizon  seek  reconsideration  of  the  handset  deployment  benchmark  for  Tier  I  wireless  carriers.  In  individual  comments,  Cingular,  Sprint  and  T-  Mobile  also  object  to  the  requirement. 


 CTIA,  Cingular,  Sprint  and  T-  Mobile  argue  that  the  Commission  did  not  adequately  explain  the  rationale  for  adopting  this  requirement  and  imply  that  the  action  violates  the  Administrative  Procedure  Act 
 (APA).  61  Similarly,  Verizon  states  that  the  decision  cannot  be  squared  with  [the  Commissions]  obligation  under  the  [APA]  to  afford  interested  parties  adequate  notice    .  62  These  parties  also  allege 
 that  the  requirement  is  inconsistent  with  Commission  precedent,  63  and  argue  that  the  requirement  violates  the  Commissions  obligation  to  maintain  regulatory  parity  as  set  out  in  Section  332  of  the 
 Communications  Act  of  1934,  as  amended  (the  Communications  Act).  64 
 19.  Most  recently,  CTIA  proposes  that  the  Commission  modify  the  preliminary  Tier  I  deployment  benchmark  such  that  Tier  I  wireless  carriers  be  given  the  option  to  make  available,  per  air 


 interface,  four  compliant  digital  wireless  handset  models,  or  twenty-  five  percent  of  the  total  number  of 
 57  See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16756-  57    7. 
 58  See  id.  at  16780    65.  See  also  47  C.  F.  R.    20.  19(  c)(  1)(  i). 
 59  See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16780    65.  See  also  47  C.  F.  R.    20.  19(  c)(  3)(  i). 
 60  See  Section  68.  4(  a)  of  the  Commissions  Rules  Governing  Hearing  Aid-  Compatible  Telephones,  WT  Docket  No. 
 01-  309,  Notice  of  Proposed  Rulemaking,  16  FCC  Rcd  20558  (2001)  (Hearing  Aid  Compatibility  Notice)  at  20561    10. 


 61  See  CTIA  Petition  at  8  (the  Commission  provided  no  data  or  rationale  for  why  the  two  model  or  25  percent 
 requirement  should  be  applied  only  to  Tier  I  carriers[]);  Cingular  Reply  Comments  at  5  ([  t]  here  is  no  basis  for  the  Commission  to  impose  more  onerous  requirements  on  Tier  I  wireless  providers  );  Sprint  Comments  at  4  (  the 


 Commissions  decision  to  impose  more  onerous  requirements  on  Tier  I  carriers  is  completely  unexplained[]);  T-Mobile  Comments  at  3  ([  t]  he  decision  to  impose  more  rigorous  obligations  on  Tier  I  carriers  is  not  explained[]). 


 62  Verizon  Petition  at  4.  Verizon  further  states  that  the  Commission  did  not  propose  obligations  based  on  carrier 
 classifications,  and  alleges  that  no  party  offered  such  a  proposal.  See  Verizon  Petition  at  3.  63 
 See  CTIA  Petition  at  7-  8;  Verizon  Petition  at  5;  T-  Mobile  Comments  at  4.  64 
 See  T-  Mobile  Comments  at  3  (the  rule  contravenes  the  regulatory  parity  directive  of  Section  332  of  the  Communications  Act).  See  also  Verizon  Petition  at  5;  Sprint  Comments  at  5. 
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 digital  wireless  handset  models  currently  offered  by  the  carriers  nationwide,  per  air  interface,  by  September  16,  2005.  65  In  addition,  by  the  following  year,  September  16,  2006,  Tier  I  carriers  would  be 
 required  to  make  available  five  HAC-  compliant  digital  wireless  handset  models  or  twenty-  five  percent  of  the  total  number  of  digital  wireless  handset  models.  66  Should  the  Commission  adopt  this  approach,  CTIA 
 states  that  the  added  certainty  afforded  by  this  modification  would  permit  Tier  I  members  to  meet  the  request  of  consumer  groups  to  include  hearing  aid  compatibility  information  on  call  out  cards,    which  are 
 part  of  the  handset  display  in  retail  stores.  67  Further,  CTIA  states  that  the  associations  Tier  I  members  would  agree  to  provide  low-  end  and  high-  end    compliant  handsets.  68  SHHH  supports  CTIAs 
 proposal,  citing  CTIAs  commitment  to  provide  consumers  with  increased  information  through  the  use  of  call  out  cards  as  part  of  retail  displays,  and  to  provide  increased  options  through  the  provision  of  phones 
 in  different  price  ranges.  69 
 20.  Discussion.  As  an  initial  matter,  we  affirm  the  Commissions  decision  to  adopt  a  preliminary  handset  deployment  benchmark  for  Tier  I  wireless  carriers.  We  find  that  the  requirement  satisfies  the 


 requirements  of  the  APA  70  because  the  action  represents  a  logical  outgrowth  of  its  proposal  to  modify  the  hearing  aid  compatibility  rules  and  is  consistent  with  the  rationale  set  forth  in  Commission  precedent.  In 
 addition,  the  requirement  is  well  within  the  bounds  of  the  authority  granted  to  the  Commission  by  Congress  in  the  HAC  Act  and  the  Communications  Act,  and  does  not  violate  the  Commissions 
 obligations  set  forth  in  Section  332  of  the  Communications  Act.  Our  review  demonstrates  that  the  preliminary  handset  deployment  benchmark  for  Tier  I  wireless  carriers  represents  a  reasoned  approach 
 that  extends  the  multiple  public  interest  benefits  of  wireless  telecommunications  service  to  persons  with  hearing  disabilities. 


 21.  The  Commissions  decision  to  impose  a  distinct  handset  deployment  requirement  on  Tier  I  wireless  carriers  represents  a  logical  outgrowth  of  its  proposal  to  modify  the  hearing  aid  compatibility 
 rules.  71  The  Hearing  Aid  Compatibility  Notice  expressly  recited  the  Commissions  expectation  that  changes  to  digital  wireless  telephones,  and,  possibly,  hearing  aids  will  be  required,  which  will  take  time 
 and  may  not  be  best  accomplished  by  a  flash  cut-  type  of  implementation.  72  In  addition,  the  Hearing  Aid  Compatibility  Notice  sought  comment  on  whether  the  best  way  to  implement  hearing  aid 
 compatibility  in  the  covered  telephones  is  a  phased-  in  approach    .  73  Thus,  the  record  in  this  proceeding  reflects  that  the  Commission  properly  alerted  interested  parties  to  the  possibility  that  a  phased-in 
 approach  would  be  adopted.  74  Furthermore,  we  note  that  the  APA  does  not  strictly  force  the 
 65  See  Letter  from  Diane  Cornell,  Vice  President,  Regulatory  Policy,  CTIA,  to  Marlene  H.  Dortch,  Secretary,  FCC, 
 WT  Docket  No.  01-  309  (filed  June  7,  2005)  (CTIA  June  7  Letter).  66 
 See  id.  67 
 Id.  68 
 Id.  69 
 See  Letter  from  Brenda  Battat,  Associate  Executive  Director,  SHHH,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WT  Docket  No.  01-  309  (filed  June  8,  2005)  (SHHH  June  8  Letter). 


 70  See  5  U.  S.  C.    553. 
 71  See,  e.  g.,  Hodge  v.  Dalton,  107  F.  3d  705  (9  th  Cir.  1997);  National  Electrical  Manufacturers  Assn  v.  EPA,  99  F. 
 3d  1170  (D.  C.  Cir.  1996);  National  Resources  Defense  Council,  Inc.  v.  Thomas,  838  F.  2d  1224  (D.  C.  Cir.  1988).  72 
 Hearing  Aid  Compatibility  Notice,  18  FCC  Rcd  at  20572    32.  73 
 Id.  74 
 See  Kooritzky  v.  Reich,  17  F.  3d  1509,  1513  (D.  C.  Cir.  1994). 
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 Commission  to  act  pursuant  to  comments  received;  nor  does  the  APA  require  the  Commission  to  raise  every  conceivable  issue  that  could  be  interpreted  as  modifying  statements  set  forth  in  a  given  notice  of 
 proposed  rulemaking.  75  Our  analysis  reveals  that,  in  developing  a  logical,  sound  policy  in  furtherance  of  its  proposal  to  modify  the  hearing  aid  compatibility  rules,  the  Commission  satisfied  the  requirements  of 
 the  APA.  76 
 22.  Similarly,  we  determine  that  the  Commissions  decision  to  establish  a  preliminary  handset  deployment  benchmark  applicable  to  Tier  I  wireless  carriers  is  consistent  with  the  rationale  set  forth  in 


 Commission  precedent.  Contrary  to  the  assertions  of  Sprint  77  and  T-  Mobile,  78  the  Commissions  rulings  in  the  E911  context  evince  the  Commissions  adoption  of  unique  deployment  benchmarks  based  on 
 carrier  size.  79  The  same  rationale  applies  here.  Indeed,  the  Commissions  action  in  establishing  the  Tier  I  requirement  is  directly  related  to  the  Commissions  previous  finding  that  Tier  I  wireless  carriers  have 
 formidable  means  to  drive  manufacturers  equipment  development  and  deployment  efforts,  as  discussed  in  the  Non-  Nationwide  Carriers  Order.  80  We  find  that,  in  establishing  the  preliminary  hearing  aid-compatible 
 handset  deployment  benchmark  for  Tier  I  wireless  carriers,  the  Commission  properly  sought  to  capitalize  on  the  economic  efficiencies  flowing  from  the  purchasing  decisions  made  by  Tier  I  wireless 
 carriers.  The  largest  carriers  have  a  greater  number  of  subscribers  and  place  the  largest  orders  for  compliant  equipment,  and  therefore  easily  become  priority  customers  for  manufacturers  and  vendors.  81 
 In  contrast  to  large  carriers,  smaller  wireless  carriers  may  be  disadvantaged  when  they  seek  to  acquire  location  technologies,  network  components,  and  specialized  handsets.  82  Because  Tier  I  wireless  carriers 
 serve  approximately  eighty  percent  of  all  wireless  subscribers,  83  the  Commission  reasonably  expected  these  entities  to  lead  the  way  toward  expeditious  access  to  hearing  aid-  compatible  handsets  for  persons 
 with  hearing  disabilities.  84  The  Commission,  therefore,  justified  its  decision  to  adopt  a  handset 
 75  See  Logansport  Broadcasting  Corp.  v.  U.  S.,  210  F.  2d  24,  28  (D.  C.  Cir.  1954). 
 76  Verizon  also  asserts  that  the  Commissions  Final  Regulatory  Flexibility  Analysis  (FRFA)  militates  against 
 imposing  a  separate  requirement  on  Tier  I  wireless  carriers.  See  Verizon  Petition  at  4  (noting  that  the  FRFA  set  forth  in  the  Hearing  Aid  Compatibility  Order  states  that  [  t]  he  critical  nature  of  hearing  aid  compatibility  with 


 wireless  phones  limits  the  Commissions  ability  to  provide  small    wireless  service  providers  with  a  substantially  less  burdensome  set  of  regulations  than  that  placed  on  large  entities  ).  Verizons  allegation,  however,  is  based  on 
 an  incomplete  reading  of  the  FRFA.  In  a  paragraph  subsequent  to  the  paragraph  in  the  FRFA  cited  by  Verizon,  the  Commission  explained  its  rationale  for  staggering  the  implementation  benchmarks.  See  Hearing  Aid  Compatibility 
 Order,  18  FCC  Rcd  at  16799  App.  B    12-  13.  Specifically,  the  Commission  clearly  stated  its  recognition  that  certain  service  providers  and  handset  manufacturers  have  only  a  small  presence  in  the  marketplace.  See  id. 


 77  See  Sprint  Comments  at  5  (asserting  that  the  Commission  has  never  adopted  different  public  interest  mandates 
 based  on  a  carriers  size).  78 
 See  T-  Mobile  Comments  at  4  (asserting  that  the  Commission  has  not  imposed  different  rules  on  different  carriers  based  on  the  total  number  of  customers  they  serve). 


 79  See,  e.  g.,  Non-  Nationwide  Carriers  Order,  17  FCC  Rcd  at  14844-  47    12-  20. 
 80  See  id. 
 81  See  id.  at  14844-  45    12. 
 82  See  id.  at  14846-  47    20. 
 83  See  Implementation  of  Section  6002(  b)  of  the  Omnibus  Budget  Reconciliation  Act  of  1993,  Annual  Report  and 
 Analysis  of  Competitive  Market  Conditions  with  Respect  to  Commercial  Mobile  Services,  WT  Docket  No.  04-  111,  Ninth  Report,  19  FCC  Rcd  20597  (2004)  at  App.  A,  Tables  2,  4. 


 84  In  light  of  our  conclusion  that  the  Commissions  decision  to  impose  a  distinct  preliminary  handset  deployment 
 benchmark  on  Tier  I  wireless  carriers  is  consistent  with  Commission  precedent,  we  disagree  with  Sprints  assertion  (continued.) 
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 deployment  benchmark  for  Tier  I  wireless  carriers  in  light  of  the  varied  circumstances  among  individual  wireless  carriers,  and  pursuant  to  Congress  mandate  that  it  ensure  the  orderly  and  efficient 
 implementation  of  the  hearing  aid  compatibility  requirements.  85 
 23.  The  Commissions  decision  to  establish  a  distinct  preliminary  handset  deployment  benchmark  for  Tier  I  wireless  carriers  is  wholly  consistent  with  the  mandate  set  forth  in  the  HAC  Act.  86 


 As  noted  earlier,  Congress  specifically  required  the  Commission  to  establish  regulations  as  are  necessary  to  ensure  reasonable  access  to  telephone  service  by  persons  with  impaired  hearing.  87  In  addition,  the 
 HAC  Act  stipulates  that  the  Commission  consider  the  costs  and  benefits  to  all  consumers,  including  persons  with  and  without  hearing  impairments    and  ensure  that  regulations  adopted    encourage  the 
 use  of  currently  available  technology  and  do  not  discourage  or  impair  the  development  of  improved  technology.  88  Given  this  broad  mandate,  we  find  that  the  Commission  devised  a  reasonable  means  to 
 ensure  an  orderly  and  efficient  implementation  of  hearing  aid  compatibility  requirements  in  the  wireless  marketplace.  In  implementing  the  hearing  aid  compatibility  rules,  the  Commission  sought  to  expedite  the 
 important  effort  to  achieve  hearing  aid  compatibility  of  digital  wireless  telephones  without  disrupting  the  growth  and  innovation  within  and  among  wireless  companies. 


 24.  We  find  that  the  Commissions  decision  to  establish  a  distinct  preliminary  handset  deployment  benchmark  for  Tier  I  wireless  carriers  is  also  consistent  with  the  Commissions  authority 
 conferred  by  Section  4(  i)  of  the  Communications  Act.  89  Congress  long  ago  granted  the  Commission  broad  authority  to  perform  any  and  all  acts,  [and]  make  such  rules  and  regulations    as  may  be 
 necessary  in  the  execution  of  its  functions.  90  The  parties  have  not  persuaded  us  that  the  Commissions  action  to  adopt  a  preliminary  benchmark  for  Tier  I  wireless  carriers  is  an  inappropriate  exercise  of  the 
 authority  granted  to  the  Commission  by  Congress.  On  reconsideration,  we  determine  that  the  Commissions  action  is  appropriately  tailored  to  rectify  the  lack  of  progress  in  implementing  hearing  aid 
 compatibility  and  establishes  comparable  operational  rules  to  ensure  the  rapid  deployment  of  hearing  aid-compatible  handsets  consistent  with  the  Commissions  authority. 


 25.  Finally,  the  Commissions  action  to  adopt  a  preliminary  handset  deployment  benchmark  for 
 (Continued  from  previous  page)  that  a  carriers  total  size  is  not  relevant  to  the  number  of  compliant  handsets  that  it  offers  to  hearing  aid  users.  See 
 Sprint  Comments  at  5-  6.  See  also  Cingular  Reply  Comments  at  5-  6.  It  may  be  true  that  Sprint  has  fewer  subscribers  in  a  given  market  than  a  smaller  competitor  such  as  ALLTEL.  Unlike  ALLTEL,  or  other  regional  and  smaller 
 carriers,  however,  Sprint  has  a  national  presence,  and  the  corresponding  ability  to  offer  products  on  a  national  basis.  We  anticipate  that  all  Tier  I  wireless  carriers,  including  Sprint,  may  meet  their  individual  requirements  through 
 distribution  channels  that  permit  a  wide  selection  offering  across  a  broad  subscriber  base.  85 
 See  Revision  of  the  Commissions  Rules  to  Ensure  Compatibility  with  Enhanced  911  Emergency  Calling  Systems,  Petitions  for  Reconsideration  of  Phase  II  Waivers  and  Compliance  Plans  of  Cingular  Wireless,  Nextel,  and 


 Verizon  Wireless;  Petitions  for  Reconsideration  of  Phase  II  Compliance  Deadlines  for  Non-  Nationwide  Carriers  of  ALLTEL  and  Dobson,  CC  Docket  94-  102,  Order,  18  FCC  Rcd  21838,  21846,  21847-  48    17,  22-  23  (2003) 
 (finding  that  the  revised  E911  Phase  II  requirements  justifiably  considered  differences  among  the  nationwide  carriers,  as  well  as  between  these  and  smaller  carriers). 


 86  Cf.  Verizon  Petition  at  3  (arguing  that  the  Commission  does  not  square  its  treatment  of  Tier  I  carriers  with  the 
 terms  of  the  HAC  Act).  87 
 See  47  U.  S.  C.    610(  a).  88 
 47  U.  S.  C.    610(  e).  89 
 See  id.    154(  i).  90 
 See  id. 
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 Tier  I  wireless  carriers  does  not  violate  the  requirements  of  Section  332  of  the  Communications  Act.  91  Verizon  and  Sprint  argue  that  the  requirement  contradicts  Congress  goal  to  ensure  that  similar  services 
 are  accorded  similar  regulatory  treatment  and  is  inconsistent  with  the  Commissions  finding  that  consistent  rules  for  competing  wireless  providers  would  minimize  potential  market  distortions.  92  We  find 
 that  Verizons  and  Sprints  interpretation  concerning  Section  332  of  the  Communications  Act  is  incomplete.  While  it  is  true  that  the  Commission  has  determined  that  consistent  rules  would  further 
 regulatory  certainty,  the  Commission  at  the  same  time  stated,  [  i]  t  is  important  to  recognize  that  a  different  set  of  policy  goals    may  require  a  different  framework  for  analysis  and  result  in  different 
 conclusions  regarding  the  extent  of  competition.  93  The  Commission  further  stated,  we  do  not  believe  that  similar  services  have  to  have  identical  technical  and  operational  rules,  94  and  recognized  that  the 
 Communications  Act  grants  the  Commission  discretion  to  fashion  comparable  rules.  95  Thus,  the  Commission  is  not  compelled  to  apply  uniform  rules  rigidly  in  this  context,  especially  when,  as  here,  the 
 Commission  appropriately  exercised  its  discretion  and  crafted  an  equitable  resolution  to  an  important  public  interest  goal    the  provision  of  wireless  services  to  individuals  with  hearing  disabilities. 


 26.  In  light  of  the  foregoing,  we  find  that  the  Commissions  decision  to  adopt  a  preliminary  deployment  benchmark  for  Tier  I  wireless  carriers  is  a  reasonable  approach  toward  expeditiously 
 extending  the  important  public  interest  benefits  of  wireless  telecommunications  service  to  persons  with  hearing  disabilities.  The  preliminary  handset  deployment  benchmark  requirement  applicable  to  Tier  I 
 wireless  carriers  is  consistent  with  the  APA,  the  HAC  Act,  the  Communications  Act  and  Commission  precedent. 


 27.  We  affirm  the  Commissions  determination  to  establish  a  preliminary  deployment  benchmark  for  Tier  I  wireless  carriers.  We  modify  Section  20.19(  c)  of  the  Commissions  rules,  however,  to  require 
 that,  by  September  16,  2005,  each  Tier  I  wireless  carrier  offering  digital  wireless  services  must  make  available  to  consumers,  per  air  interface,  four  U3-  rated  handsets,  or  twenty-  five  percent  of  the  total 
 number  of  handsets  it  offers  nationwide;  and  that,  by  September  16,  2006,  each  Tier  I  wireless  carrier  offering  digital  wireless  services  must  make  available  to  consumers,  per  air  interface,  five  U3-  rated 
 handsets,  or  twenty-  five  percent  of  the  total  number  of  handsets  it  offers  nationwide.  96  We  believe  that  providing  the  carriers  the  option  of  meeting  our  requirement  by  simply  providing  a  fixed  number  of 
 phones  will  provide  greater  certainty,  as  carriers  need  not  update  their  number  of  compliant  phones  every  time  they  change  their  overall  inventory.  97  More  importantly,  we  are  persuaded  that  this  change  will  not 
 adversely  affect  hearing  impaired  individuals  access  to  compatible  phones.  We  rely  in  large  part  on  SHHHs  support  for  the  CTIA  proposal,  98  and  in  recognition  of  CTIAs  commitment,  on  behalf  of  its  Tier 


 91  See  id.    332. 
 92  See  Verizon  Petition  at  5;  Sprint  Comments  at  5. 
 93  Implementation  of  Sections  3(  n)  and  332  of  the  Communications  Act,  PR  Docket  No.  89-  553,  Third  Report  and 
 Order,  9  FCC  Rcd  7988,  8011  42  (1994).  94 
 Id.  at  8036    79  (emphasis  added).  95 
 Id.  at    80.  96 
 The  revised  rule  is  set  forth  in  Appendix  B  to  this  Order  on  Reconsideration.  With  respect  to  the  T-  Mobile  June  3  Letter,  we  decline  to  adopt  the  companys  request  that  we  modify  our  rule  to  a  numerical  two  requirement,  given 


 CTIAs  subsequent  representation  that  the  CTIA  request  is  presented  on  behalf  of  its  Tier  I  members,  which  we  assume  includes  T-  Mobile. 
 97  See  Letter  from  Diane  Cornell,  Vice  President,  CTIA,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WT  Docket  No.  01- 
 309  (filed  June  2,  2005)  (CTIA  June  2  Letter).  98 
 SHHH  June  8  Letter  at  1. 
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 I  members,  to  include  [hearing  aid  compatibility]  information  on  call-  out  cards[,]    which  are  part  of  the  handset  display  in  retail  stores,  and  to  provide  low-  end  and  high-  end  [hearing  aid-  compatible] 
 handsets.  99  We  believe  that  this  approach,  together  with  CTIAs  commitment  on  behalf  of  its  members  to  provide  increased  hearing  aid  compatibility  information  in  retail  displays  and  to  provide  consumers 
 with  increased  options  at  differing  price  points,  will  facilitate  consumers  ability  to  obtain  phones  that  are  suitable  for  their  particular  needs.  Taken  together,  we  find  that  the  rule  modification  we  adopt  today  will 
 benefit  the  public  interest  by  providing  increased  certainty  with  respect  to  compliance  with  our  rules  while  protecting  the  interests  of  consumers  with  hearing  disabilities. 


 C.  Fifty  Percent  Handset  Deployment  Benchmark 
 28.  Background.  On  February  18,  2008,  wireless  carriers  have  the  option  to  discontinue  providing  analog  service  pursuant  to  the  Commissions  Analog  Sunset  Order.  100  In  the  Hearing  Aid 


 Compatibility  Order,  the  Commission  determined  that  by  February  18,  2008,  fifty  percent  of  all  digital  wireless  handsets  offered  by  a  manufacturer,  carrier  or  service  provider  must  meet  the  U3  performance 
 level  for  acoustic  coupling.  101  The  Commission  established  the  fifty  percent  handset  deployment  benchmark  as  an  interim  step  that  would  further  manufacturers  incorporation  of  hearing  aid-  compatible 
 functions  into  all  digital  wireless  handsets,  given  the  Commissions  expectation  that  analog  service  would  be  less  prevalent  after  that  date.  102  The  Commission  also  adopted  a  targeted  schedule  for  revisiting  the 
 fifty  percent  requirement  in  the  future.  103  Specifically,  the  Commission  directed  the  staff  to  prepare  and  deliver  a  report  in  2006,  which  analyzes  and  addresses  the  appropriateness  of  the  fifty  percent  handset 
 deployment  benchmark,  and  indicated  that  the  staff  report  would  form  the  basis  for  initiation  of  a  proceeding  to  evaluate  whether  the  fifty  percent  handset  deployment  benchmark  should  be  increased, 
 decreased,  or  remain  the  same.  104 
 29.  Although  the  Commission  has  clearly  indicated  its  intention  to  revisit  the  fifty  percent  deployment  benchmark    well  in  advance  of  the  February  18,  2008,  implementation  deadline    CTIA 


 seeks  reconsideration  of  the  fifty  percent  requirement  prior  to  the  2006  staff  report.  105  CTIA  implies  that  the  Commission  should  have  established  a  handset  deployment  threshold  requirement  lower  than  fifty 
 percent.  106  In  its  comments,  T-  Mobile  also  urges  the  Commission  to  reconsider  this  requirement  and  to  carefully  assess  whether  the  size  of  the  market  for  hearing  aid-  compatible  handsets  is  reasonably  related 
 to  the  number  of  handset  models  available.  107 
 30.  Discussion.  We  find  that  CTIAs  request  for  reconsideration  of  the  fifty  percent  handset  deployment  benchmark  is  premature.  As  noted  above,  the  Commission  intended  to  monitor  closely  the 


 99  CTIA  June  7  Letter  at  1. 
 100  See  Year  2000  Biennial  Review    Amendment  of  Part  22  of  the  Commissions  Rules  to  Modify  or  Eliminate 
 Outdated  Rules  Affecting  the  Cellular  Radiotelephone  Service  and  Other  Commercial  Mobile  Radio  Services,  WT  Docket  No.  01-  108,  Report  and  Order,  17  FCC  Rcd  18401  (2002). 


 101  See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16780    66.  See  also  47  C.  F.  R.    20.  19(  c)(  1)(  i); 
 20.  19(  c)(  2)(  i);  20.  19(  c)(  3)(  ii).  102 
 See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16780    66.  103 
 See  id.  at  16782    74.  104 
 See  id.  105 
 See  CTIA  Petition  at  9-  10.  106 
 See  id.  at  10.  107 
 T-  Mobile  Comments  at  5. 
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 hearing  aid  compatibility  deployment  process,  including  the  decision  to  establish  the  fifty  percent  benchmark,  and  asked  staff  to  examine  and  analyze  the  requirement  by  2006.  The  Commission  also 
 indicated  that  the  staff  report  will  form  the  basis  for  initiation  of  a  proceeding  to  evaluate  the  need  to  modify  the  fifty  percent  handset  deployment  benchmark.  All  interested  parties,  including  CTIA  and  T-Mobile, 
 will  have  an  opportunity  to  submit  information  to  the  Commission  as  part  of  this  undertaking.  In  light  of  the  targeted  schedule  for  revisiting  the  fifty  percent  handset  deployment  benchmark,  we  deny  this 
 aspect  of  the  CTIA  Petition  as  well  as  the  T-  Mobile  request. 
 D.  Labeling  of  Hearing  Aid-  Compatible  Digital  Wireless  Handsets 
 31.  Background.  As  noted  earlier,  the  HAC  Act  instructs  the  Commission  to  establish  requirements  for  the  labeling  of  packaging  materials  to  provide  adequate  information  to  consumers 


 regarding  the  compatibility  between  telephones  and  hearing  aids.  108  As  set  forth  in  the  Hearing  Aid  Compatibility  Order,  the  Commission  sought  to  effectuate  this  mandate  by  requiring  digital  wireless 
 handset  manufacturers  to:  (1)  place  a  label  on  the  exterior  packaging  containing  the  wireless  handset  indicating  the  technical  rating  of  the  wireless  handset,  and  (2)  include  more  detailed  information  on  the 
 ANSI  standard  in  either  a  product  insert  or  in  the  wireless  telephones  manual.  109  Further,  the  Commission  required  service  providers  to  ensure  that  the  label  is  readily  visible  to  individuals  with 
 hearing  disabilities  so  they  may  easily  rule  out  wireless  handsets  that  would  not  meet  their  individual  needs.  110  In  adopting  these  requirements,  the  Commission  balanced  the  need  for  individuals  with  hearing 
 disabilities  to  have  information  sufficient  to  make  an  informed  decision  against  the  need  for  digital  wireless  handset  manufacturers  to  promote  their  products  with  as  few  encumbrances  as  possible.  111  In 
 tandem  with  these  requirements,  the  Commission  strongly  encouraged  digital  wireless  handset  manufacturers  and  service  providers  to  engage  in  outreach  efforts  to  assist  consumers  with  hearing 
 disabilities  as  they  shop  for  wireless  phones.  112 
 32.  In  its  petition  for  reconsideration,  CTIA  recommends  that  digital  wireless  handsets  that  meet  the  ANSI  technical  standard  should  bear  exterior  labeling  stating  only,  Meets  FCCs  Wireless  HAC 


 Standard.  113  In  its  comments,  SHHH  supports  the  exterior  labeling  policy  developed  by  the  Commission,  and  explains  that  requiring  a  hearing  aid  user  or  family  member  to  purchase  the  phone,  open 
 the  package,  and  then  read  the  documentation  to  ascertain  the  U-  rating  of  the  wireless  handset  would  place  an  undue  burden  on  the  consumer.  114  In  its  comments,  T-  Mobile  maintains  that  the  detailed 
 information  concerning  the  hearing  aid  compatibility  of  a  given  handset  should  be  identified  at  the  point  of  sale  or  through  a  web  site,  rather  than  in  a  product  insert  or  in  the  product  manual.  115  In  the  ATIS  May 
 6,  2005  Letter,  ATIS  requests  that  the  Commission  provide  clarification  that  the  exterior  labels  associated 


 108  See  47  U.  S.  C.    610(  d). 
 109  See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16785    83,  85-  86.  See  also  47  C.  F.  R.    20.  19(  f). 
 110  See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16785-  86    83-  87. 
 111  See  id.  at  16785    83. 
 112  See  id.  at  16787-  88    92. 
 113  See  CTIA  Petition  at  11.  CTIA  argues  that  information  regarding  the  U-  rating,  as  well  as  details  pertaining  to 
 additional  technical  capabilities,  should  be  included  in  the  product  manual.  See  id.  114 
 See  SHHH  Comments  at  6.  SHHH  also  discusses  the  importance  of  an  educational  campaign  to  increase  awareness  about  phone  ratings  and  its  preference  that  retailers  prominently  display  information  relating  to  the 


 phones.  See  id.  115 
 See  T-  Mobile  Comments  at  6. 
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 with  compliant  handsets  bear  the  M  and  T  ratings  associated  with  the  2005  draft  version  of  the  ANSI  technical  standard.  116  As  discussed  below,  we  decline  to  adopt  the  labeling  recommendation  set  forth  in 
 the  CTIA  Petition  and  affirm  and  clarify  the  labeling  requirements  established  in  the  Hearing  Aid  Compatibility  Order. 


 33.  Discussion.  We  continue  to  believe  that  the  two-  pronged  approach  --  placement  of  a  prominent  exterior  label  indicating  the  handsets  technical  rating,  combined  with  more  detailed 
 information  located  inside  the  package  --  will  provide  consumers  with  a  quick  synopsis  of  the  information  necessary  to  make  an  informed  decision  without  impairing  the  ability  of  digital  wireless  handset 
 manufacturers  and  service  providers  to  engage  in  myriad  marketing  efforts.  The  requirement  that  digital  wireless  handset  manufacturers  prominently  place  an  exterior  label  indicating  the  handsets  U-  rating 
 satisfies  the  need  of  consumers  to  learn  the  U-  rating  of  a  given  handset  at  a  glance,  and  enables  consumers  to  make  a  fast,  preliminary  determination  regarding  the  hearing  aid  compatibility  of  a  given 
 digital  wireless  handset.  We  disagree  with  T-  Mobiles  argument  that  the  consumer  will  not  examine  the  box  until  after  the  handset  is  purchased.  117  The  external  labeling  requirement  established  by  the 
 Commission  permits  consumers  to  quickly  determine  whether  the  given  handset  should  comport  with  their  individual  hearing  aid.  In  this  regard  and  at  ATIS  request,  we  clarify  that  the  exterior  labels 
 associated  with  compliant  handsets  bear  the  M  and  T  ratings  associated  with  the  2005  draft  version  of  the  ANSI  technical  standard,  as  appropriate.  118  Finally,  we  decline  to  adopt  CTIAs  proposal  that  the 
 external  label  of  a  compliant  handset  state  only,  Meets  FCCs  Wireless  HAC  Standard.  We  are  concerned  that  this  external  label  may  lead  consumers  to  incorrectly  conclude  that  the  Commission  has 
 itself  tested,  approved  and  endorsed  the  quality  of  interoperability  between  the  digital  wireless  handset  and  a  hearing  aid. 


 34.  We  also  affirm  the  Commissions  conclusion  that  more  detailed  information  pertaining  to  hearing  aid  compatibility  properly  belongs  inside  the  packaging  that  holds  the  wireless  handset.  Once 
 consumers  view  the  exterior  label  and  determine  that  the  handset  in  question  will  likely  be  compatible  with  their  individual  hearing  aid,  they  may  open  the  package  to  obtain  additional  detail  pertaining  to  the 
 handset.  We  disagree  with  SHHH  that  opening  the  handset  packaging  to  obtain  this  information  places  an  undue  burden  on  the  consumer.  In  our  experience,  retailers  typically  permit  consumers  to  open  packages 
 for  the  purpose  of  touching  and  experimenting  with  their  products  prior  to  purchase.  SHHH  presents  no  evidence  that  wireless  retailers  do  not  follow  this  protocol.  In  fact,  we  notice  that  mobile  device  retailers 
 typically  open  the  packaging  on  the  customers  behalf  for  the  purpose  of  programming  the  handset  at  the  retail  center.  We  further  determine  that  the  labeling  requirements  established  by  the  Commission  are 
 sufficiently  flexible  to  allow  SHHH  or  any  other  interested  party  to  work  directly  with  manufacturers  or  other  marketers  of  digital  wireless  handsets  to  collectively  devise  a  means  to  convey  more  information  on 
 the  handsets  external  package  label. 
 35.  Finally,  we  find  that  the  Commission  provided  companies  with  the  necessary  latitude  to  design  package  labels  and  provide  supplemental  information  under  the  handset  labeling  policy  adopted  in 


 the  Hearing  Aid  Compatibility  Order.  The  Commission  did  not  impose  specific,  detailed  procedures  or  language  requirements,  but  instead  granted  handset  manufacturers,  digital  wireless  carriers  and  service 
 providers  a  good  deal  of  flexibility  in  determining  how  best  to  market  compliant  handsets.  Given  the 
 116  See  ATIS  May  6,  2005  Letter  at  1. 
 117  See  T-  Mobile  Comments  at  5-  6. 
 118  Because  the  2005  and  2001  versions  of  the  ANSI  C63.19  standard  use  the  same  technical  criteria  to  determine 
 the  hearing  aid  compatibility  and  inductive  coupling  capability  of  a  wireless  phone,  to  avoid  confusion,  the  new  M  and  T  labeling  system  may  be  used  for  compatibility  tests  performed  under  either  the  2005  or  2001  version  of  the 


 standard. 
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 main  objective  to  ensure  that  consumers  have  complete  information  regarding  the  quality  of  interoperability  between  the  wireless  handset  and  a  hearing  aid,  119  we  find  that  the  two-  pronged  approach 
 represents  an  equitable,  balanced  means  to  satisfy  the  needs  of  consumers  and  digital  wireless  handset  providers  alike. 


 36.  In  light  of  this  analysis,  we  affirm  the  labeling  requirements  established  in  Hearing  Aid  Compatibility  Order  and  deny  this  aspect  of  the  CTIA  Petition.  Moreover,  given  the  obvious  importance 
 of  educating  consumers  on  hearing  aid  compatibility  of  digital  wireless  phones,  we  fully  expect  that  all  stakeholders  will  engage  in  complementary  outreach  efforts  to  ensure  that  consumers  can  easily  identify 
 and  purchase  digital  wireless  phones  that  suit  their  individual  needs.  We  are  hopeful  that  this  outreach  would  include  training  retail  personnel  to  provide  information  to  consumers  at  the  point  of  sale  as  well  as 
 posting  information  relating  to  the  hearing  aid  compatibility  of  given  handsets  on  manufacturer  and  carrier  websites. 


 E.  Live,  In-  Store  Consumer  Testing  of  Digital  Wireless  Handsets 
 37.  Background.  In  the  Hearing  Aid  Compatibility  Order,  the  Commission  required  that  carriers  must  make  all  of  their  hearing  aid-  compatible  handset  models  available  for  consumers  to  test  in  each 


 retail  store  that  carriers  own  or  operate.  120  Separately,  the  Commission  encouraged  digital  wireless  service  providers  to  provide  a  thirty-  day  trial  period  or  otherwise  be  flexible  on  their  return  policies  for 
 consumers  seeking  to  obtain  compliant  phones.  121  The  Commission  reasoned  that  consumers  need  ample  time  within  which  to  experiment  with  various  features  and  handset  models  to  identify  the  best 
 match  for  their  individual  situation.  122 
 38.  In  its  petition  for  reconsideration,  CTIA  first  requests  that  we  clarify  whether  all  carrier-owned  and  operated  retail  outlets  must  make  live,  in-  store  testing  available  to  consumers  seeking  to 


 purchase  digital  wireless  handsets.  123  Second,  CTIA  contends  that  the  live  testing  requirement  is  unnecessary  in  view  of  CTIAs  Voluntary  Consumer  Information  Codes  fourteen-  day  trial  period  for 
 new  services,  and  implies  that  the  Commission  should  recommend  or  adopt  CTIAs  fourteen-  day  trial  period  and  apply  it  to  all  carriers.  124  In  its  comments,  T-  Mobile  also  recommends  adoption  of  the 
 fourteen-  day  trial  period.  125  SHHH  asks  the  Commission  to  maintain  the  live,  in-  store  consumer  testing  requirement  because  its  members  want  to  test  the  effectiveness  of  a  product  before  buying  it.  126  We 
 clarify  and  affirm  the  obligation  to  provide  consumer  testing  of  digital  wireless  handsets  below. 
 39.  Discussion.  We  first  clarify  that,  at  this  time,  all  retail  outlets  owned  or  operated  by  wireless  carriers  or  service  providers  must  make  live,  in-  store  consumer  testing  available.  We  seek  comment  on 


 extending  this  requirement  in  the  Further  Notice  of  Proposed  Rulemaking  set  forth  in  Section  V.,  below. 
 40.  Second,  we  disagree  with  the  suggestions  of  CTIA  and  T-  Mobile  that  the  live,  in-  store 


 119  See  Hearing  Aid  Compatibility  Order  at  16785    85.  See  also  47  C.  F.  R.    68.  300. 
 120  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16780    65.  See  also  47  C.  F.  R.    20.  19(  c)(  2)(  i); 
 20.  19(  c)(  3)(  i);  20.  19(  d)(  2).  121 
 Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16788    93.  122 
 See  id.  123 
 See  CTIA  Petition  at  12.  124 
 See  id.  at  13.  125 
 See  T-  Mobile  Comments  at  6.  126 
 SHHH  Comments  at  7  (emphasis  in  original). 
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 consumer  testing  requirement  is  unnecessary  in  view  of  CTIAs  Voluntary  Consumer  Information  Codes  fourteen-  day  trial  period  for  new  services.  We  therefore  affirm  the  live,  in-  store  testing  requirement 
 adopted  by  the  Commission.  We  find  that  the  fourteen-  day  trial  period  would  not  permit  consumers  to  easily  determine  whether  a  particular  handset  meets  their  individual  needs.  We  agree  with  SHHH  that 
 live  testing  at  the  retail  outlet  permits  consumers  to  undertake  a  preliminary,  but  important,  evaluation  of  the  volume  and  interference  levels  of  a  given  digital  wireless  phone  and  will  therefore  minimize  the 
 hassle  associated  with  returning  the  phone  at  a  later  time.  127  For  this  reason,  we  uphold  the  live,  in-store  consumer  testing  requirement.  We  also  continue  to  encourage  service  providers  to  provide  a  thirty-day 
 trial  period  or  otherwise  adopt  a  flexible  return  policy  for  consumers  seeking  to  obtain  hearing  aid-compatible  digital  wireless  phones.  We  strongly  believe  that  mandatory  tests  conducted  live  and  on-  the-spot 
 in  retail  outlets,  in  combination  with  real-  world  testing  over  the  course  of  thirty  days  and  flexible  return  policies,  which  we  encourage,  will  ensure  that  persons  with  hearing  aids  have  a  meaningful 
 opportunity  and  sufficient  time  to  identify  and  become  comfortable  with  digital  wireless  phones. 
 F.  Compliance  Reporting  Obligations 
 41.  Background.  In  the  Hearing  Aid  Compatibility  Order,  the  Commission  required  wireless  carriers  and  handset  manufacturers  to  report  on  compliance  efforts  every  six  months  from  2004  through 


 2006,  and  then  annually  in  2007  and  2008.  128  The  Commission  determined  that  these  reports  would  serve  dual  purposes:  (1)  assist  the  Commission  in  monitoring  handset  deployment  progress,  and  (2)  provide 
 valuable  information  to  the  public  concerning  the  technical  testing  and  commercial  availability  of  hearing  aid-  compatible  handsets.  129  The  Commission  also  stated  that  the  reports  would  assist  its  efforts  to  verify 
 compliance  with  130  and  undertake  an  analysis  of  131  the  fifty  percent  handset  deployment  benchmark  discussed  above.  132  Finally,  the  Commission  permitted  digital  wireless  handset  manufacturers  and  service 
 providers  to  submit  joint  reports  in  order  to  minimize  the  reporting  burden.  133 
 42.  In  its  comments,  Sprint  recommends  that  the  Commission  modify  the  reporting  obligation  to  permit  digital  wireless  carriers  and  service  providers  to  file  their  compliance  reports  forty-  five  days  after 


 manufacturers  file  their  reports.  134  Sprint  submits  that  this  change  will  result  in  a  more  orderly  process  for  all  involved  because  it  will  permit  service  providers  to  reference  manufacturer  reports  in  their  own 
 compliance  reports.  135  In  its  petition  for  reconsideration,  CTIA  argues  that  information  collected  through  the  reports,  such  as  the  number  of  handsets  and  their  retail  availability,  could  be  competitively 
 sensitive.  136  Therefore,  CTIA  seeks  clarification  on  the  Commissions  use  of  information  set  forth  in  the 


 127  See  id. 
 128  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). 


 129  See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16787    89. 
 130  See  id. 
 131  See  id.  at  16783    74. 
 132  See  infra.    IV.  C. 
 133  See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16787    89. 
 134  See  Sprint  Comments  at  14. 
 135  See  id. 
 136  See  CTIA  Petition  at  12.  See  also  T-  Mobile  Comments  at  12. 
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 reports,  implying  that  the  Commission  should  afford  them  confidential  treatment.  137  We  clarify  the  hearing  aid  compatibility  reporting  obligations  below. 
 43.  Discussion.  We  first  deny  Sprints  request  that  we  permit  carriers  and  service  providers  to  file  their  compliance  reports  after  those  filed  by  handset  manufacturers.  Whatever  convenience  might 
 accrue  to  Sprint  in  being  able  to  reference  manufacturers  filings  is  not  offset  by  the  Commissions  interest  in  having  timely,  consolidated  information.  Furthermore,  as  noted  earlier,  the  reporting 
 obligation  set  forth  in  the  Hearing  Aid  Compatibility  Order  permits  digital  wireless  carriers,  service  providers  and  handset  manufacturers  to  share  information  and  submit  joint  filings.  138  Therefore,  we  find 
 that  this  flexibility  adequately  addresses  Sprints  concerns  while  allowing  the  Commission  to  efficiently  collect  the  information  it  needs  to  monitor  industry  progress  toward  deploying  hearing  aid-  compatible 
 digital  wireless  handsets.  139 
 44.  With  respect  to  CTIAs  request  that  we  clarify  the  Commissions  use  of  information  provided  in  the  reports,  we  note  that  the  Commission  closely  reviews  the  compliance  reports  to  monitor  handset 


 deployment  progress,  with  the  goal  of  proactively  resolving  any  potential  for  delay.  We  also  analyze  the  data  contained  in  the  reports  to  comply  with  Congress  requirement  that  we  periodically  review  and 
 scrutinize  our  hearing  aid  compatibility  regulations.  140  Moreover,  we  analyze  the  information  in  the  reports  in  furtherance  of  the  commitment  to  revisit  the  February  18,  2008,  fifty  percent  handset 
 deployment  benchmark,  as  noted  earlier.  Just  as  important,  the  compliance  reports  have  been  and  will  continue  to  be  a  significant  source  of  information  for  consumers,  particularly  those  with  hearing 
 disabilities. 
 45.  Finally,  we  find  that  a  blanket  issuance  of  confidentiality  is  unwarranted  given  the  ongoing  and  vital  need  of  the  Commission  and  the  public  to  analyze  the  data  contained  in  the  reports.  As  always, 


 parties  that  seek  to  keep  a  report  confidential  or  to  preserve  the  confidentiality  of  certain  information  in  a  report  may  request  confidential  treatment  under  Section  0.459  of  the  Commissions  rules.  141  We  remind 
 parties  that  the  rule  requires  the  requesting  party  to  justify  fully  its  request  by  providing  enough  information  for  the  Commission  to  determine  the  need  for  confidential  treatment.  142  We  further  note  that 
 the  rule  requires  the  party  requesting  confidential  treatment  to  submit  the  complete  filing  as  well  as  a  redacted  copy  omitting  the  allegedly  confidential  information  from  the  filing,  which  the  Commission  will 
 make  available  to  the  public.  We  will  address  any  requests  for  confidential  treatment  of  material  contained  in  the  compliance  reports  on  a  case-  by-  case  basis.  143 


 G.  TDMA  Carrier  Compliance  with  the  Preliminary  Handset  Deployment  Benchmark 
 46.  Background.  As  noted  earlier,  in  the  Hearing  Aid  Compatibility  Order,  the  Commission  established  specific  benchmarks  for  the  deployment  of  hearing  aid-  compatible  digital  wireless 


 137  See  CTIA  Petition  at  12. 
 138  See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16787    89. 
 139  We  note  that  Sprint  is  a  signatory  to  the  compliance  report  filed  by  the  Alliance  for  Telecommunications  Industry 
 Solutions  (ATIS).  See  ATIS  Incubator  Solutions  Program  #4,  Status  Report  #2,  WT  Docket  No.  01-  309  (filed  Nov.  17,  2004)  at  9. 


 140  See  47  U.  S.  C.    610(  f). 
 141  See  47  C.  F.  R.    0.459. 
 142  See  id.    0.459(  b). 
 143  See  Examination  of  Current  Policy  Concerning  the  Treatment  of  Confidential  Information  Submitted,  GC  Docket 
 No.  96-  55,  Order,  13  FCC  Rcd  24816,  24854-  55    66-  67  (1998). 
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 handsets.  144  Separate  from  the  preliminary  handset  deployment  benchmark  for  Tier  I  wireless  carriers  discussed  above,  145  the  Commission  adopted  a  preliminary  handset  deployment  benchmark  for  all  other 
 wireless  carriers  without  regard  to  the  air  interface(  s)  employed  by  the  carriers.  Specifically,  the  Commission  required  that,  by  September  16,  2005,  each  digital  wireless  handset  manufacturer  must  make 
 available  to  wireless  carriers  and  each  wireless  carrier  providing  digital  wireless  services  must  make  available  to  consumers  at  least  two  handsets  for  each  air  interface  it  offers,  which  provide  the  reduced  RF 
 emissions  (U3  rating)  necessary  to  enable  acoustic  coupling  without  interference.  146  The  Commission  stated  that  this  benchmark  applies  to  each  air  interface  offered  by  the  digital  wireless  handset 
 manufacturer  and  the  carrier  providing  digital  wireless  services,  and  did  not  distinguish  among  different  air  interfaces.  147  As  noted  earlier,  in  adopting  this  preliminary  benchmark  for  smaller,  non-  nationwide 
 wireless  carriers,  the  Commission  sought  to  stimulate  access  to  telecommunications  services  for  individuals  with  hearing  disabilities. 


 47.  We  received  a  joint  petition  for  reconsideration  of  the  handset  deployment  benchmarks  from  the  TDMA  Carriers  and  Rural  Telecommunications  Group  (RTG).  148  In  their  joint  petition,  the  TDMA 
 Carriers  and  RTG  express  concern  that  neither  new  handsets  nor  enhancements  to  existing  models  will  be  developed  for  the  obsolete  TDMA  air  interface  and  therefore  they  will  have  difficulty  complying  with  the 
 handset  deployment  benchmarks.  149  They  further  explain  that  their  members  are  presently  in  various  stages  of  overbuilding  their  existing  TDMA  networks  with  different  digital  air  interfaces  and  thus  they 
 envision  an  ongoing  need  to  continue  operating  the  TDMA  networks  beyond  September  16,  2005,  the  date  for  compliance  with  the  preliminary  handset  deployment  benchmark.  150  Therefore,  the  TDMA 
 Carriers  and  RTG  ask  the  Commission  to  consider  carriers  operating  TDMA  networks  that  are  overbuilding  their  networks  with  alternate  digital  technologies  to  be  compliant  with  the  September  16, 
 2005,  preliminary  handset  deployment  benchmark  if  the  carriers  make  handsets  associated  with  the  alternate  technology  available  to  their  customers.  151  In  its  comments,  the  Rural  Cellular  Association 
 (RCA)  supports  the  TDMA  Carriers  and  RTG  and  asks  the  Commission  to  grant  relief  on  a  class-  wide  basis.  152  We  grant  in  part  the  TDMA  Carriers  and  RTG  Petition  and  modify  the  obligation  of  TDMA 
 carriers  to  comply  with  the  handset  deployment  benchmarks,  as  discussed  below. 
 48.  Discussion.  We  modify  Section  20.19(  c)  of  our  rules  to  specify  that  we  consider  a  wireless  carrier  operating  a  TDMA  network  that  plans  to  overbuild  (i.  e.,  replace)  its  network  to  employ  alternative 


 144  See  supra    III.  See  also  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16775-  16776    53;  47  C.  F.  R.   
 20.  19(  c)-(  d).  145 
 See  supra    IV.  B.  146 
 See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  16775-  76    53.  See  also  47  C.  F.  R.    20.  19(  c)-(  d).  147 
 See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  16775-  76    53.  148 
 The  TDMA  Carriers  (Public  Service  Cellular,  Inc.;  Missouri  RSA  No.  7  Limited  Partnership  d/  b/  a  Mid-  Missouri  Cellular;  Minnesota  Southern  Wireless  Company  d/  b/  a  Hickory  Tech;  Northwest  Missouri  Cellular  Limited 


 Partnership;  Illinois  Valley  Cellular  RSA  2-  II  Limited  Partnership;  and  Illinois  Valley  Cellular  RSA  2-  III  Limited  Partnership)  are  a  group  of  smaller  carriers  that  provide  wireless  services  using  the  TDMA  air  interface.  RTG 
 represents  smaller  carriers  that  provide  wireless  services  in  rural  areas  using  the  TDMA  air  interface.  See  TDMA  Carriers  and  RTG  Petition  at  1-  2. 


 149  See  TDMA  Carriers  and  RTG  Petition  at  4. 
 150  See  id. 
 151  See  id.  at  5-  6. 
 152  See  RCA  Comments  at  3.  See  also  Sprint  Comments  at  12;  Cingular  Reply  Comments  at  1-  2. 
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 air  interfaces  to  be  compliant  with  the  September  16,  2005,  preliminary  handset  deployment  benchmark  if  the  carrier:  (1)  offers  two  hearing  aid-  compatible  handset  models  to  its  customers  that  receive  service 
 from  the  overbuilt  (i.  e.,  non-  TDMA)  portion  of  its  network,  (2)  overbuilds  (i.  e.,  replaces)  its  entire  network,  and  (3)  completes  the  overbuild  by  September  18,  2006.  153  Pursuant  to  RCAs  request,  we 
 clarify  that  this  relief  applies  to  any  wireless  carrier  that  fits  these  criteria.  Nonetheless,  we  specify  that  this  relief  is  limited  in  scope  and  applies  only  to  carriers  that  fully  intend  to  completely  replace  their 
 existing  TDMA  networks. 
 49.  We  provide  this  rule  modification  in  light  of  the  Commissions  recognition  that  small  wireless  carriers  are  often  unable  to  influence  vendor  product  development,  154  and  because  of  the  record 


 evidence  that  supports  a  conclusion  that  wireless  carriers  in  general  have  migrated  away  from  the  TDMA  air  interface.  155  Furthermore,  we  acknowledge  that  a  technology  overbuild  represents  a  considerable 
 undertaking  and  requires  a  significant  investment.  We  therefore  are  hopeful  that  this  limited  relief  will  allow  TDMA  carriers,  which  often  have  small  numbers  of  subscribers  and  thus  lower  revenues,  to  focus 
 their  limited  resources  primarily  on  upgrading  their  networks.  Finally,  we  agree  that  requiring  TDMA  carriers  to  offer  two  compliant  TDMA  handset  models  could  have  the  unintended  consequence  of  forcing 
 these  carriers  to  shut  down  their  networks,  which  may  deprive  subscribers  of  service.  156 
 50.  Finally,  we  emphasize  the  importance  of  ensuring  that  hearing  aid-  compatible  handsets  are  made  available  to  consumers  in  the  shortest  period  possible.  In  light  of  the  fact  that  the  necessary 


 technology  to  complete  these  network  overbuilds  is  readily  available,  and  given  the  status  of  TDMA  carrier  overbuilds,  157  we  believe  that  it  is  appropriate  to  establish  September  18,  2006,  as  the  date  certain 
 by  which  carriers  must  complete  their  TDMA  network  overbuilds.  In  circumstances  where  TDMA  carriers  do  not  intend  to  completely  replace  existing  networks,  we  will  entertain  individual  requests  for 
 relief.  We  will  evaluate  these  requests  on  a  case-  by-  case  basis  under  our  general  waiver  standard.  158  We  caution  at  the  outset  that,  to  the  extent  that  a  carrier  is  requesting  a  waiver  of  the  hearing  aid  compatibility 
 rules  in  order  to  accommodate  its  transition  from  one  air  interface  to  another,  it  must  demonstrate  "a  clear  path  to  full  compliance"  by,  for  example,  providing  concrete  evidence  of  its  documented  commitment  to  a 
 date  certain  for  that  transition  to  be  accomplished.  159 


 153  We  note  that  September  18,  2006,  is  the  date  by  which  each  provider  of  public  mobile  service  must  include  in 
 their  handset  offerings  at  least  two  handset  models  for  each  air  interface  that  provide  inductive  coupling.  See  47  C.  F.  R.    20.  19(  d)(  2).  The  revised  rule  is  set  forth  at  Appendix  B  to  this  Order  on  Reconsideration. 


 154  See  Non-  Nationwide  Carriers  Order,  17  FCC  Rcd  at  14844    10-  11. 
 155  See,  e.  g.,  SHHH  Comments  at  7;  Cingular  Reply  Comments  at  2. 
 156  See  Cingular  Reply  Comments  at  2. 
 157  See  Letter  from  Michael  S.  Bennet,  counsel  for  RTG,  and  Joshua  Zeldis,  counsel  for  the  TDMA  Carriers,  to 
 Marlene  H.  Dortch,  Secretary,  FCC,  WT  Docket  No.  01-  309  (filed  May  27,  2005).  158 
 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  Commissions  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).  159 
 See  Revision  of  the  Commissions  Rules  to  Ensure  Compatibility  with  Enhanced  911  Calling  Systems,  CC  Docket  No.  94-  102,  Order  to  Stay,  18  FCC  Rcd  20987,  20997    27  (2003). 
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 H.  The  De  Minimis  Exception  for  Digital  Wireless  Carriers,  Service  Providers  and  Handset  Manufacturers 
 51.  Background.  As  noted  earlier,  the  Commission  recognized  that  the  hearing  aid  compatibility  requirements  adopted  in  the  Hearing  Aid  Compatibility  Order  could  have  a  disproportionate 
 impact  on  small  manufacturers  or  those  that  sell  only  a  small  number  of  digital  wireless  handsets  in  the  United  States,  as  well  as  on  carriers  that  offer  only  a  small  number  of  digital  wireless  handsets.  160  To 
 resolve  this  concern,  the  Commission  adopted  a  de  minimis  exception,  which  relieves  wireless  carriers,  service  providers  and  handset  manufacturers  that  offer  two  or  fewer  digital  wireless  handsets  in  the 
 United  States  from  the  hearing  aid  compatibility  compliance  obligations  set  forth  in  the  Hearing  Aid  Compatibility  Order.  161 


 52.  In  its  petition  for  reconsideration,  RIM  asks  the  Commission  to  clarify  the  de  minimis  exception.  162  RIM  explains  that  it  offers  nine  different  BlackBerry  Wireless  Handheld  (BlackBerry) 
 devices    one  for  each  of  the  iDEN  and  CDMA  air  interfaces  and  seven  for  the  GSM/  GPRS  air  interface.  163  According  to  RIM,  to  the  extent  the  de  minimis  exception  rule  takes  into  account  all  handsets 
 offered  by  manufacturers  across  all  air  interfaces,  RIM  and  other  similarly-  situated  handset  manufacturers  may  not  qualify  for  the  de  minimis  exception  and  thus  would  be  disadvantaged.  164  Therefore,  RIM 
 requests  that  the  Commission  clarify  that  the  de  minimis  exception  is  meant  to  apply  on  a  per-  air  interface  basis.  165  Likewise,  CTIA  seeks  clarification  as  to  whether  the  de  minimis  exception  applies  to  a 
 suppliers  or  carriers  total  activity  or  whether  it  applies  on  an  air  interface-  specific  basis.  166  Pursuant  to  its  comments,  SHHH  does  not  oppose  RIMs  request  that  the  de  minimis  exception  apply  on  an  air 
 interface  basis.  167  As  set  forth  below,  we  grant  the  RIM  Petition  and  clarify  that  the  de  minimis  exception  applies  to  digital  wireless  carriers,  service  providers  and  handset  manufacturers  on  a  per  air  interface 
 basis. 
 53.  Discussion.  We  clarify  that  the  de  minimis  exception  applies  on  a  per  air  interface  basis,  rather  than  across  a  manufacturers  or  carriers  entire  product  line.  This  clarification  makes  explicit  the 


 consistency  between  the  handset  deployment  benchmarks,  which  expressly  apply  on  a  per  air  interface  basis,  168  and  the  de  minimis  exception,  which  relieves  wireless  carriers,  service  providers  and  handset 
 manufacturers  that  offer  two  or  fewer  digital  wireless  handsets  in  the  U.  S.  from  complying  with  the  hearing  aid  compatibility  requirements,  including  the  deployment  benchmarks.  169  As  written,  the  de 
 minimis  exception  could  appear  to  require  RIM  to  offer  the  requisite  number  of  compliant  handsets  on 


 160  See  supra    IV.  B. 
 161  See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  16781    69  (also  specifying  that  wireless  carriers,  service 
 providers  and  handset  manufacturers  that  offer  three  digital  wireless  handset  models  must  offer  at  least  one  compliant  handset  by  September  16,  2005).  See  also  47  C.  F.  R.    20.  19(  e)(  1)-(  2). 


 162  See  RIM  Petition  at  1. 
 163  See  id.  at  2. 
 164  See  id.  at  1  (emphasis  added).  See  also  Sprint  Comments  at  12. 
 165  RIM  Petition  at  1. 
 166  See  CTIA  Petition  at  14. 
 167  See  SHHH  Comments  at  7. 
 168  See  47  C.  F.  R.    20.  19(  c)-(  d). 
 169  See  id.  at    20.  19(  e). 
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 each  of  the  iDEN,  CDMA  and  GSM/  GPRS  air  interfaces  because  RIM  manufactures  a  total  of  nine  devices.  We  agree  that  the  de  minimis  exception  could  be  interpreted  as  requiring  all  digital  wireless 
 carriers,  service  providers  and  handset  manufacturers,  regardless  of  size,  to  either  enter  the  U.  S.  market  with  two  compliant  handsets  or  not  enter  the  market  at  all.  170  We  do  not  intend  to  force  RIM  or  any  other 
 similarly-  situated  digital  wireless  carrier,  service  provider  or  handset  manufacturer  to  potentially  either  triple  its  product  offering  for  the  iDEN  and  CDMA  air  interfaces  or  withdraw  its  existing  products  from 
 the  U.  S.  wireless  market.  171  We  find  that  this  outcome  could  have  the  effect  of  retarding  technological  progress  and  limiting  competition.  172  Therefore,  we  grant  the  RIM  Petition  and  clarify  that  the  de  minimis 
 exception  applies  on  a  per  air  interface  basis,  rather  than  across  the  entire  product  line  of  a  given  digital  wireless  carrier,  service  provider  or  handset  manufacturer.  173 


 I.  Enforcement  of  Hearing  Aid  Compatibility  Matters 
 54.  Background.  The  HAC  Act  expressly  states  that  [  t]  he  Commission  shall  delegate  to  each  State  commission  the  authority  to  enforce  within  such  State  compliance  with  the  specific  regulations  that 


 the  Commission  issues  under  subsections  (a)  and  (b),  conditioned  upon  the  adoption  and  enforcement  of  such  regulations  by  the  State  commission.  174  In  light  of  this  mandate,  the  Commission  extended  Part  68, 
 Subpart  E  of  its  rules,  which  pertain  to  enforcement  of  hearing  aid  compatibility  in  wired  telephones,  to  permit  digital  wireless  service  subscribers  to  initiate  complaints  at  state  commissions  in  the  event  that 
 either  digital  wireless  carriers,  service  providers  or  handset  manufacturers  fail  to  comply  with  the  hearing  aid  compatibility  rules.  175  The  Commission  reasoned  that  extension  of  its  Part  68,  Subpart  E  rules  into  the 
 wireless  context  would  benefit  individuals  with  hearing  disabilities  because  they  have  experience  with  these  well-  established  procedures,  and  that  consumers  and  the  public  interest  would  be  best  served  by  a 
 uniform,  technology-  neutral  process  for  resolving  complaints. 
 55.  Verizon  and  CTIA  ask  us  to  reconsider  the  Commissions  decision  to  delegate  authority  to  the  states  to  enforce  our  rules  governing  the  hearing  aid  compatibility  of  digital  wireless  phones,  urging 


 us  to  assert  such  authority  based  on  the  Commissions  exclusive  jurisdiction  over  radio  frequency  emissions.  176  Cingular,  T-  Mobile  and  Sprint  agree,  arguing  that  the  states  have  little  or  no  legal  authority 


 170  See  RIM  Petition  at  2.  See  also  CTIA  Petition  at  13;  Sprint  Comments  at  11;  Cingular  Reply  Comments  at  3. 
 171  See  Cingular  Reply  Comments  at  3. 
 172  See  RIM  Petition  at  2. 
 173  SHHH  also  asks  the  Commission  to  narrow  the  de  minimis  exception  by  clarifying  that  when  a  manufacturer  has 
 only  one  handset  in  any  particular  interface,  that  it  would  be  subject  to  the  HAC  rule.  SHHH  Comments  at  7.  RIM  responds  that  the  SHHH  request  would  actually  set  a  higher  standard  of  compliance  for  smaller  manufacturers  than 


 for  larger  ones,  clearly  not  the  intent  of  the  Commission  in  establishing  the  exception  in  the  first  place.  RIM  Reply  Comments  at  1.  We  address  issues  related  to  this  and  other  ways  of  potentially  narrowing  the  de  minimis  exception 
 in  the  Further  Notice  of  Proposed  Rulemaking  set  forth  in  Section  V.,  below.  174 
 47  U.  S.  C.    610(  h).  175 
 See  47  C.  F.  R.    68.  414-  423.  See  also  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16789    95;  47  C.  F.  R.    20.  19(  g).  We  note  that  the  Commissions  rules  provide  that  enforcement  of  hearing  aid  compatibility  is  delegated 


 to  those  states  that  adopt  the  Commissions  rules  and  provide  for  enforcement  of  the  rules.  See  id.    68.  414.  The  Commissions  rules  further  provide  that  persons  with  complaints  that  are  not  addressed  by  the  states  may  bring 
 informal  complaints  to  the  Commissions  Consumer  &  Governmental  Affairs  Bureau.  See  id.  at    68.  415.  176 
 See  CTIA  Petition  at  14-  17;  Verizon  Petition  at  6-  10.  See  also  Letter  from  Robert  G.  Morse,  Wilkinson,  Barker,  Knauer,  LLP,  Counsel  to  CTIA,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WT  Docket  No.  01-  309  (filed  Aug.  25, 


 2004). 
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 over  the  technical  aspects  of  wireless  services  and  equipment.  177 
 56.  Discussion.  We  find  that  the  Commission  properly  delegated  authority  to  the  states  to  enforce  our  rules  governing  the  hearing  aid  compatibility  of  digital  wireless  handsets  in  cases  where  the 


 states  have  adopted  these  rules  and  provide  for  enforcement.  We  clarify,  however,  that  the  Commission  retains  exclusive  jurisdiction  over  the  technical  standards  for  hearing  aid  compatibility.  Subsection  (c)  of 
 Section  710  states  that  The  Commission  shall  establish  or  approve  such  technical  standards  as  are  required  to  enforce  this  section.  178  As  explained  below,  we  believe  that  our  exclusive  jurisdiction  over 
 technical  standards  extends  to  determinations  whether  particular  equipment  complies  with  our  standards.  Thus,  states  must  refer  questions  that  arise  in  the  context  of  an  enforcement  action  as  to  whether  particular 
 equipment  complies  with  our  technical  standards  to  the  Commissions  Office  of  Engineering  and  Technology.  OET  will  determine  whether  particular  equipment  complies  with  the  Part  20  hearing  aid 
 compatibility  rules,  including  the  ANSI  C63.19  technical  standard  (which  directly  relates  to  RF  emissions,  interference  and  telecoil  inductive  coupling).  Once  OET  has  made  such  a  determination  based 
 on  a  referral  from  a  state,  the  state  retains  authority  to  determine  and  pursue  appropriate  enforcement  action.  We  modify  Section  20.19  of  our  rules  accordingly.  179 


 57.  There  are  several  reasons  for  our  conclusion  that  our  exclusive  jurisdiction  over  technical  standards  extends  to  determinations  whether  particular  equipment  complies  with  our  standards.  Whether 
 equipment  complies  with  our  technical  standards  is  a  highly  complex  determination  that  requires  particular  expertise.  Slight  variations  in  measurement  techniques  or  in  reading  a  testing  report  can  lead  to 
 widely  varying  results.  At  the  same  time,  most  wireless  phones  are  marketed  nationwide,  and  our  hearing  aid  compatibility  requirements  apply  nationwide.  Moreover,  the  Commission  certifies  equipment  on  a 
 nationwide  basis.  180  Under  our  equipment  certification  procedures,  usually,  a  manufacturer  supplies  its  test  data  with  its  application  to  the  Commission  for  equipment  authorization.  181  Alternatively,  the 
 Commission  may  designate  Telecommunication  Certification  Bodies  (TCBs)  to  approve  equipment  as  required  under  Part  2  of  our  rules.  182  If  one  state  commission  were  to  find  that  a  particular  handset  is  not 
 compliant  with  the  Commissions  rules,  that  state  would  effectively  be  making  a  determination  for  the  entire  nation.  183  Even  worse,  if  different  states  came  to  different  conclusions  on  whether  a  particular 
 handset  complies  with  our  rules,  manufacturers  and  carriers  might  have  difficulty  continuing  to  provide  service  at  all.  184  In  both  cases,  the  Commissions  reliance  on  certification  would  be  undermined.  185 
 Inconsistent  technical  analysis  and  testing  methodologies  thus  threaten  to  render  our  technical  standards 
 177  See  Cingular  Reply  Comments  at  4;  Sprint  Comments  at  10;  T-  Mobile  Comments  at  7. 
 178  47  U.  S.  C.    610(  c).  This  is  consistent  with  the  Commissions  longstanding  jurisdiction  over  radiofrequency 
 interference  and  related  technical  matters.  See  Broyde  v.  Gotham  Tower,  Inc.,  13  F.  3d  994  (6  th  Cir.  1994),  citing  Head  v.  New  Mexico  Board  of  Examiners  in  Optometry,  374  U.  S.  424,  430  n.  6  (1963)  ([  T]  he  FCCs    jurisdiction 


 over  the  regulation  of  radio  frequency  interference  [and]  over  technical  matters  associated  with  the  transmission  of  radio  signals  is  clearly  exclusive.  )  and  Freeman  v.  Burlington  Broadcasters,  Inc.,  204  F.  3d  311,  321  (2  nd  Cir. 
 2000)  (  Congress  intended  that  the  FCC  enjoy  exclusive  jurisdiction  to  regulate  RF  interference.).  179 
 The  revised  rule  is  set  forth  at  Appendix  B  to  this  Order  on  Reconsideration.  180 
 See  47  C.  F.  R.  Part  2,  Subpart  J.  181 
 See  47  C.  F.  R.    2.907(  a).  182 
 See  47  C.  F.  R.    2.960(  a).  183 
 See  CTIA  June  2  Letter.  184 
 See  id.  185 
 See  id. 
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 ineffective.  Accordingly,  as  stated  above,  we  clarify  that  our  exclusive  jurisdiction  over  technical  standards  extends  to  determinations  of  whether  particular  wireless  handsets  comply  with  those  standards, 
 and  expressly  incorporate  compliance  determinations  into  our  rules. 
 58.  We  conclude  that  unless  we  retain  this  degree  of  control  over  the  administration  of  the  technical  standards  we  have  promulgated  under  Section  710(  c),  our  rules  will  likely  cease  to  function  as  a 


 standard,  given  the  complexity  of  the  technology  involved  and  the  special  expertise  necessary  to  test  and  evaluate  whether  a  wireless  phone  complies  with  our  HAC  Act-  based  technical  standards.  If  the  States 
 were  to  assume  this  role,  we  predict  that  the  standards  would  be  applied  unevenly,  which  would  disrupt  the  certainty  and  uniformity  of  regulation  necessary  to  realize  economies  of  scale  in  manufacturing  and 
 distribution,  and  to  market  phones  on  a  nationwide  basis.  186  Because  our  continued  oversight  of  the  technical  standards  is  therefore  an  integral  part  of  our  ability  to  establish  workable  standards  that  serve  the 
 public  interest,  our  performance  of  this  evaluative  function  (i.  e.,  the  continued  oversight)  constitutes  an  exercise  of  our  mandate  under  Section  710(  c)  rather  than  Sections  710(  a)  or  (b).  Thus,  the  delegation 
 requirement  of  Section  710(  h)    which  applies  only  to  specific  regulations  that  the  Commission  issues  under  subsections  (a)  and  (b)  187    does  not  require  us  to  delegate  this  fact-  finding  function  to  the  States. 
 Accordingly,  where  a  State  chooses  to  adopt  the  Commissions  hearing  aid  compatibility  rules,  and  hence,  is  delegated  authority  for  enforcement  pursuant  to  Section  710(  h),  the  State  shall  refer  to  the 
 Commissions  Office  of  Engineering  and  Technology  any  questions  involving  factual  determinations  of  compliance  with  the  standard.  OET  will  render  a  determination  in  response  to  each  request  so  that  the 
 State  can  properly  carry  out  the  States  enforcement  role,  including  interactions  with  the  complainant  and  equipment  supplier,  and  the  determination  of  the  appropriate  remedy. 


 59.  We  recognize  that  CTIA  and  Verizon  seek  the  Commission  to  go  further,  and  to  take  enforcement  matters  entirely  away  from  the  states.  We  believe  this  argument  is  incompatible  with  the 
 language  of  the  HAC  Act.  As  noted,  the  HAC  Act  states  that  [  t]  he  Commission  shall  delegate  to  each  State  commission  the  authority  to  enforce  within  such  State  compliance  with  the  specific  regulations  that 
 the  Commission  issues  under  subsections  (a)  and  (b),  conditioned  upon  the  adoption  and  enforcement  of  such  regulations  by  the  State  commission.  188  No  party  has  raised  a  compelling  argument  to  counter  this 
 plain  language,  and  we  thus  conclude  that  states  that  have  adopted  our  rules  and  provide  for  enforcement  continue  to  have  enforcement  authority.  Moreover,  we  conclude  that  allowing  states  to  make  factual 
 determinations  incidental  to  enforcement  other  than  those  involving  compliance  with  our  technical  rules    such  as  determining  compliance  with  our  labeling  requirements,  for  example    do  not  run  the  same  risk  of 
 undermining  standards  within  exclusive  Commission  jurisdiction.  Such  determinations  do  not  require  specialized  expertise,  are  not  highly  complex,  and  are  unlikely  to  vary  significantly  from  state  to  state. 
 Accordingly,  states  that  have  adopted  our  rules  and  provide  for  enforcement  may  continue  to  make  such  determinations. 


 60.  Finally,  consistent  with  our  affirmation  that  states  may  handle  enforcement  of  the  Commissions  hearing  aid  compatibility  requirements  where  they  have  adopted  our  rules  and  provide  for 
 such  enforcement,  we  affirm  the  Commissions  decision  to  apply  the  obligations  and  procedures  applicable  in  the  wireline  telephone  context  (set  forth  in  Part  68,  Subpart  E  of  our  rules)  to  parties  named 
 in  informal  complaints  involving  hearing  aid  compatibility  of  digital  wireless  phones.  The  deadlines  set  forth  in  these  rules  ensure  that  these  informal  complaints  will  be  addressed  in  an  expeditious  manner  (by 


 186  See  id. 
 187  47  U.  S.  C.    610(  h). 
 188  Id. 
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 providing  a  thirty-  day  period  during  which  time  state  personnel  shall  attempt  to  resolve  the  dispute),  189  and  permit  consumers  or  states  to  refer  complaints  to  the  Commission  within  six  months  where  the  state 
 fails  to  act  or  has  not  adopted  or  incorporated  the  Commissions  rules.  190  We  continue  to  believe  that  the  deadlines  contained  in  the  rules  will  ensure  that  states  address  informal  complaints  quickly  and 
 efficiently,  and  will  create  more  certainty  for  consumers  and  wireless  carriers.  191 
 V.  FURTHER  NOTICE  OF  PROPOSED  RULEMAKING 
 61.  Background.  In  the  Order  on  Reconsideration,  above,  we  clarified  that  the  live,  in-  store  consumer  testing  requirement  applies  to  all  retail  outlets  owned  or  operated  by  wireless  carriers  or  service 


 providers.  192  In  addition,  we  clarified  that  the  de  minimis  exception,  which  exempts  from  the  hearing  aid  compatibility  requirements  wireless  carriers,  service  providers  and  handset  manufacturers  that  offer  two 
 or  fewer  digital  wireless  handset  models,  applies  on  a  per  air  interface  basis,  rather  than  across  an  entire  product  line.  193  As  set  forth  below,  we  seek  comment  on:  (1)  extending  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. 


 A.  Extending  the  Obligation  to  Provide  Live,  In-  Store  Consumer  Testing 
 62.  First,  we  seek  comment  on  extending  the  live,  in-  store  consumer  testing  requirement  to  retail  outlets  that  are  not  directly  owned  or  operated  by  wireless  carriers  or  service  providers.  Although  we 


 clarified  today  that  all  retail  outlets  owned  or  operated  by  wireless  carriers  or  service  providers  must  make  live,  in-  store  consumer  testing  available,  we  are  concerned  that  limiting  this  requirement  to  these  retail 
 outlets  may  prevent  us  from  fully  effectuating  Congress  requirement  that  we  establish  such  regulations  as  are  necessary  to  ensure  reasonable  access  to  telephone  service  by  persons  with  impaired  hearing.  194 
 Moreover,  in  its  petition,  CTIA  asks  the  Commission  to  clarify  whether  the  [Commission]  has  legal  authority  and  the  scope  of  that  authority  to  require  retail  stores  to  comply  195  with  the  live,  in-  store  testing 
 requirement.  Accordingly,  we  seek  comment  on  this  CTIA  request.  If  we  find  that  we  have  the  authority  explicitly  to  extend  our  hearing  aid  compatibility  rules  to  independent  retailers,  should  we  do  so? 


 63.  We  also  seek  comment  on  the  impact  that  this  proposal  would  have  on  small  business  retailers  and  independent  retailers.  Would  extending  this  requirement  create  a  more  level  playing  field  for 
 different  types  of  retailers?  Or,  would  extending  this  requirement  create  an  unacceptable  burden  for  independent  retailers,  small  business  retailers,  or  both?  For  instance,  will  small  business  retailers  have  the 
 physical  space  to  fulfill  this  requirement?  Do  small  business  retailers  have  the  sales  volume  to  support  implementation  of  this  requirement?  We  encourage  commenters  to  be  specific  as  to  the  impact  of  this 


 189  See  47  C.  F.  R.    68.  414  (stating  that  state  procedures  for  enforcing  hearing  aid  compatibility  rules  must  provide  a 
 thirty-  day  period  after  a  complaint  is  filed,  during  which  time  state  personnel  shall  attempt  to  resolve  a  dispute  on  an  informal  basis[]). 


 190  See  id.  (stating  that  [  i]  f  the  state  has  not  adopted  or  incorporated  the  Commissions  rules,  or  failed  to  act 
 within  six  months  from  the  filing  of  a  complaint  with  the  state  public  utility  commission,  the  Commission  will  accept  such  complaints[]). 


 191  Cf.  T-  Mobile  Comments  at  7  (arguing  that  an  entirely  different  system  would  potentially  confuse  customers 
 and  complicate  matters  for  carriers).  192 
 See  supra    IV.  E.  193 
 See  supra    IV.  H.  194 
 47  U.  S.  C.    610(  a).  195 
 CTIA  Petition  at  12. 
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 proposed  modification. 
 64.  We  note  that  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.  We  further  note  that  independent  retailers  act  as  agents  for  wireless  carriers  and  service  providers  in  selling  wireless  services.  As  Section  217  of  the  Communications  Act  explicitly 
 makes  carriers  responsible  for  the  acts,  omissions,  and  failures  of  their  agents,  among  others,  we  seek  comment  on  the  nature  of  any  contract  provisions  that  would  require  the  retailers  to  provide  live,  in-  store 
 consumer  testing.  196  Further,  because  Section  217  does  not  apply  to  service  providers  who  are  not  carriers,  we  seek  comment  on,  whether  under  provisions  of  general  agency  law  and  the  HAC  Act,  we 
 could  require  those  service  providers,  in  their  contracts  with  retailers  selling  their  wireless  services,  to  require  live,  in-  store  consumer  testing.  We  also  seek  comment  on  the  extent  to  which  carriers  and  service 
 providers  should  be  expected  to  monitor  and  enforce  such  contract  provisions  regarding  this  testing  requirement. 


 65.  Finally,  we  seek  comment  on  how  many  small  business  and  independent  retailers  have  adopted  the  fourteen-  day  trial  period  for  new  services  set  forth  in  the  CTIA  Voluntary  Consumer 
 Information  Code  (CTIA  Code).  Which  retailers  are  bound  by  the  CTIA  Code  and  offer  a  fourteen-  day  trial  period?  Are  there  major  independent  retailers  that  do  not  have  a  two  week  return  policy?  What 
 percentage  of  carriers  service  plans  is  purchased  through  independent  retailers?  Do  manufacturers  own  any  retail  stores?  If  so,  what  percentage  of  manufacturers  handsets  is  purchased  through  an  independent 
 retailer?  Are  independent  retailers  currently  preparing  to  comport  with  our  hearing  aid  compatibility  rules,  specifically  with  our  rules  on  the  number  of  compliant  handsets  that  must  be  offered  for  sale  and 
 our  live,  in-  store  consumer  testing  rules?  Relatedly,  we  also  seek  comment  on  how  parties  envision  consumers  with  hearing  disabilities  will  be  impacted  in  instances  where  independent  retailers  do  not 
 provide  live,  in-  store  testing  or  a  thirty-  day  trial  period,  which  the  Commission  encourages.  If  some  independent  retailers  do  not  engage  in  practices  that  comport  with  our  hearing  aid  compatibility  rules, 
 how  will  this  present  problems  for  hearing-  impaired  consumers?  For  instance,  do  parties  foresee  instances  where  independent  retailers  would  claim  that  certain  wireless  phone  models  are  compliant  yet 
 would  not  allow  consumers  to  return  handsets  if  hearing  aid  compatibility-  related  problems  arose?  Have  there  already  been  instances  where  independent  retailers  have  claimed  that  certain  phone  models  were 
 hearing  aid-  compatible  but  refused  to  allow  consumers  to  return  handsets  if  hearing  aid  compatibility-related  problems  arose?  We  have  determined  that  the  ability  to  return  handsets  that  do  not  comply  with 
 our  rules  is  not  a  substitute  for  an  in-  store  testing  requirement  for  stores  owned  or  operated  by  wireless  carriers  or  service  providers.  What  characteristics  or  independent  retailers  would  support  a  different 
 determination  for  the  application  of  the  in-  store  testing  requirement  in  their  case?  Would  returning  wireless  phones  that  present  hearing  aid  compatibility-  related  problems  be  more  difficult  when  handsets 
 are  purchased  from  an  independent  retailer  or  a  small  business  retailer?  We  intend  to  follow  these  developments  closely  after  the  September  16,  2005,  handset  deployment  date.  As  noted  earlier,  we 
 believe  that  persons  with  hearing  disabilities  must  have  a  meaningful  opportunity  and  sufficient  time  to  identify  and  become  familiar  with  digital  wireless  phones. 


 B.  Narrowing  the  De  Minimis  Exception 
 66.  Second,  we  seek  comment  on  whether  to  narrow  the  de  minimis  exception  so  as  to  exempt  from  the  hearing  aid  compatibility  requirements  wireless  carriers,  service  providers  and  handset 


 manufacturers  that  offer  one  digital  wireless  handset  model  per  air  interface,  or  whether  we  should  narrow 


 196  See  47  U.  S.  C.    217. 
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 the  de  minimis  exception  in  some  other  way.  197  Specifically,  we  seek  comment  on  whether  the  current  rule  reduces  the  ability  of  consumers  with  hearing  aids  and  cochlear  implants  to  have  access  to  wireless 
 devices.  198  We  seek  comment  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.  199  We  seek  comment  on  the  number  of  wireless  carriers,  service  providers  and  manufacturers  that  would  be  affected  by  any  such  change  in  the  rule,  including  the 
 impact  on  small  businesses.  We  encourage  commenters  to  be  specific  and  to  provide  empirical  evidence  as  to  the  impact  of  narrowing  the  de  minimis  exception. 


 VI.  CONCLUSION 
 67.  In  this  Order  on  Reconsideration,  we  affirm  the  Commissions  decision  to  adopt  the  ANSI  C63.19  technical  standard  as  an  established  technical  standard  and  reiterate  the  Commissions  ongoing 


 commitment  to  expeditiously  review  final  updated  versions  of  the  standard  either  on  our  own  motion  or  upon  request.  We  also  affirm  the  Commissions  authority  to  establish  the  preliminary  handset 
 deployment  benchmark  specific  to  Tier  I  wireless  carriers,  and  we  modify  the  requirement  in  order  to  provide  greater  certainty  while  not  adversely  affecting  hearing  impaired  individuals  access  to  compatible 
 phones.  In  addition,  we  affirm  the  handset  labeling  and  live,  in-  store  consumer  testing  framework,  as  well  as  the  compliance  reporting  obligation.  We  modify  with  conditions  the  preliminary  handset 
 deployment  obligation  for  digital  wireless  carriers  employing  TDMA  technology,  given  our  recognition  that  the  TDMA  air  interface  has  become  increasingly  obsolete.  We  clarify  that  the  de  minimis  exception 
 applies  on  a  per  air  interface  basis.  We  also  clarify  that  the  Commission  retains  exclusive  jurisdiction  over  the  technical  standards  for  hearing  aid  compatibility.  In  this  Further  Notice  of  Proposed 
 Rulemaking,  we  seek  comment  on:  (1)  extending  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  to  narrow  the  de  minimis  exception  so  as  to  exempt  from  the  hearing  aid  compatibility  requirements  wireless  carriers,  service  providers  and  handset  manufacturers  that  offer  one  digital  wireless 
 handset  model  per  air  interface,  as  well  as  other  potential  ways  to  narrow  the  de  minimis  exception.  Our  actions  today  further  Congress  goal  of  ensuring  access  to  telecommunications  services  by  individuals 
 with  hearing  disabilities  and  are  critical  in  light  of  the  rising  importance  of  wireless  communication. 
 VII.  PROCEDURAL  MATTERS 
 A.  Comment  Filing  Procedures 
 68.  Comments  and  reply  comments.  Pursuant  to  the  applicable  procedures  set  forth  in  sections  1.415  and  1.  419  of  the  Commissions  rules,  200  interested  parties  may  file  comments  in  response  to  the 


 Further  Notice  of  Proposed  Rulemaking  on  or  before  60  days  after  publication  in  the  Federal  Register,  and  reply  comments  on  or  before  90  days  after  publication  in  the  Federal  Register.  All  filings  related  to 
 this  Order  on  Reconsideration  and  Notice  of  Proposed  Rulemaking  should  refer  to  WT  Docket  No.  01-  309. 


 197  For  example,  SHHH  requests  that  we  should  require  a  manufacturer  that  has  only  one  handset  in  any  particular 
 interface  to  make  the  phone  compliant  with  our  hearing  aid  compatibility  requirements.  See  SHHH  Comments  at  7.  We  note  that  although  a  number  of  parties  expressed  general  support  for  the  SHHH  comments,  these  parties  did  not 


 expressly  comment  on  or  endorse  the  SHHH  proposal.  See,  e.  g.,  IHS  Comments  at  1;  ALDA  Comments  at  1.  Further,  only  RIM  expressly  commented  on  this  proposal.  See  RIM  Reply  Comments  at  1;  see  supra  n.  173. 


 198  See  SHHH  Comments  at  7-  8. 
 199  See  RIM  Petition  at  2. 
 200  See  47  C.  F.  R.    1.415,  1.  419. 
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 12  th  Street,  SW,  Room  CY-  B402,  Washington,  DC  20554,  telephone  1-  800-  378-  3160,  or  via  e-  mail  at  the  following  e-  mail  address:  <WWW.  BCPIWEB.  COM>.  Accessible  formats  (computer  diskettes,  large 
 print,  audio  recording  and  Braille)  are  available  to  persons  with  disabilities  by  contacting  Brian  Millin,  of  the  Consumer  &  Governmental  Affairs  Bureau,  at  (202)  418-  7426,  TTY  (202)  418-  7365,  or  at 
 <bmillin@  fcc.  gov>. 
 B.  Ex  Parte  Presentations 
 70.  The  Further  Notice  of  Proposed  Rulemaking  is  a  permit-  but-  disclose  rulemaking  proceeding,  subject  to  the  permit-  but-  disclose  requirements  under  Section  1.1206(  b)  of  the  Commissions  rules.  201 


 Ex  parte  presentations  are  permitted,  except  during  the  Sunshine  Agenda  period,  provided  they  are  disclosed  pursuant  to  the  Commissions  Rules.  202 


 C.  Regulatory  Flexibility  Act 
 71.  The  Regulatory  Flexibility  Act  of  1980,  as  amended  (RFA),  203  requires  that  a  regulatory  flexibility  analysis  be  prepared  for  notice-  and-  comment  rule  making  proceedings,  unless  the  agency 


 certifies  that  the  rule  will  not,  if  promulgated,  have  a  significant  economic  impact  on  a  substantial  number  of  small  entities.  204  The  RFA  generally  defines  the  term  small  entity  as  having  the  same 
 meaning  as  the  terms  small  business,  small  organization,  and  small  governmental  jurisdiction.  205  In  addition,  the  term  small  business  has  the  same  meaning  as  the  term  small  business  concern  under 
 the  Small  Business  Act.  206  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).  207 
 72.  Final  Regulatory  Flexibility  Certification.  As  required  by  the  RFA,  208  the  Commission  has  prepared  a  Final  Regulatory  Flexibility  Certification  of  the  possible  impact  on  small  entities  of  the 


 proposals  in  the  Order  on  Reconsideration.  In  this  proceeding  the  Commission  acts  to  ensure  that  every  American  has  access  to  the  benefits  of  digital  wireless  telecommunications,  including  individuals  with 
 hearing  disabilities.  The  Commission  grants  in  part  and  denies  in  part  petitions  for  reconsideration  of  the  Hearing  Aid  Compatibility  Order,  which  lifted  the  blanket  exemption  for  digital  wireless  telephones 
 under  the  HAC  Act. 


 201  See  47  C.  F.  R.    1.1206(  b)(  2). 
 202  See  generally  id.  at    1.1202,  1.  1203,  1.1206. 
 203  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).  204 
 5  U.  S.  C.    605(  b).  205 
 Id.  at    601(  6).  206 
 Id.  at    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.  207 
 15  U.  S.  C.    632.  208 
 See  5  U.  S.  C.    603.  The  RFA  has  been  amended  by  the  Small  Business  Regulatory  Enforcement  Fairness  Act  of  1996,  Pub.  L.  No.  104-  121,  Title  II,  110  Stat.  857  (1996).  See  id.  at    601-  612. 
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 73.  Pursuant  to  the  RFA,  209  a  Final  Regulatory  Flexibility  Analysis  (FRFA)  was  incorporated  into  the  Hearing  Aid  Compatibility  Notice.  210  The  instant  Order  on  Reconsideration  modifies  Section 
 20.19(  c)  of  the  Commissions  rules  on  hearing  aid  compatible  mobile  handsets  in  response  to  a  petition  from  wireless  carriers  operating  TDMA  networks  and  overbuilding  them  to  employ  alternative  air 
 interfaces.  These  carriers  will  be  considered  compliant  with  the  September  16,  2005,  preliminary  handset  deployment  benchmark  if  they:  (1)  offer  two  hearing  aid-  compatible  handset  models  to  customers  that 
 receive  service  from  the  overbuilt  (i.  e.,  non-  TDMA)  portion  of  the  network,  (2)  are  overbuilding  (i.  e.,  replacing)  their  entire  network,  and  (3)  complete  the  overbuild  by  September  18,  2006.  Therefore, 
 because  we  find  the  action  taken  in  the  instant  Order  on  Reconsideration  amounts  to  an  exception  and  maintains  the  status  quo  for  affected  entities  for  a  period  of  approximately  one  year,  and  that  any  impact 
 overall  is  positive,  we  certify  that  the  action  described  will  not  result  in  a  significant  economic  impact  on  a  substantial  number  of  small  entities. 


 74.  In  addition,  we  certify  that  our  decision  to  modify  the  preliminary  handset  deployment  benchmark  for  Tier  I  wireless  carriers  will  not  have  a  significant  economic  impact  on  a  substantial 
 number  of  small  entities.  Tier  I  wireless  carriers  are  not  small. 
 75.  The  Commission  will  send  a  copy  of  the  Order  on  Reconsideration,  including  a  copy  of  this  Final  Regulatory  Flexibility  Certification,  in  a  report  to  Congress  pursuant  to  the  Congressional  Review 


 Act.  211  In  addition,  the  Order  on  Reconsideration  and  this  final  certification  will  be  sent  to  the  Chief  Counsel  for  Advocacy  of  the  SBA,  and  will  be  published  in  the  Federal  Register.  212 


 76.  Initial  Regulatory  Flexibility  Analysis.  As  required  by  the  RFA,  the  Commission  has  prepared  an  Initial  Regulatory  Flexibility  Analysis  (IRFA)  of  the  possible  impact  on  small  entities  of  the 
 proposals  in  the  instant  Further  Notice  of  Proposed  Rulemaking.  213  The  IRFA  is  set  forth  in  Appendix  C.  Written  public  comments  are  requested  on  the  IRFA.  These  comments  must  be  filed  in  accordance  with 
 the  same  filing  deadlines  for  comments  on  the  Further  Notice  of  Proposed  Rulemaking,  and  must  have  a  separate  and  distinct  heading  designating  them  as  responses  to  the  IRFA.  The  Commission  will  send  a 
 copy  of  the  Further  Notice  of  Proposed  Rulemaking,  including  the  IRFA,  to  the  Chief  Counsel  for  Advocacy  of  the  Small  Business  Administration.  214 


 D.  Paperwork  Reduction  Analysis 
 77.  The  Order  on  Reconsideration  does  not  contain  new  or  modified  information  collection  requirements  subject  to  the  Paperwork  Reduction  Act  of  1995  (PRA),  Public  Law  No.  104-  13.  In 


 addition,  therefore,  it  does  not  contain  any  new  or  modified  information  collection  burden  for  small  business  concerns  with  fewer  than  25  employees,  pursuant  to  the  Small  Business  Paperwork  Relief  Act 
 of  2002,  Public  Law  107-  198,  see  44  U.  S.  C.  3506  (c)(  4). 
 78.  Likewise,  the  Further  Notice  of  Proposed  Rulemaking  does  not  contain  proposed  information  collection  (s)  subject  to  the  Paperwork  Reduction  Act  of  1995  (PRA),  Public  Law  104-  13.  In  addition, 


 therefore,  it  does  not  contain  any  proposed  information  collection  burden  for  small  business  concerns 
 209  See  id.  at    603.  The  RFA  has  been  amended  by  the  Small  Business  Regulatory  Enforcement  Fairness  Act  of 
 1996,  Pub.  L.  No.  104-  121,  Title  II,  110  Stat.  857  (1996).  See  id.  at    601-  612.  210 
 See  Hearing  Aid  Compatibility  Order,  18  FCC  Rcd  at  16795.  211 
 See  5  U.  S.  C.    801(  a)(  1)(  A).  212 
 See  id.  at    605(  b).  213 
 See  generally  5  U.  S.  C.    603.  214 
 Id. 
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 with  fewer  than  25  employees,  pursuant  to  the  Small  Business  Paperwork  Relief  Act  of  2002,  Public  Law  107-  198,  see  44  U.  S.  C.  3506  (c)(  4). 
 VIII.  ORDERING  CLAUSES 
 79.  IT  IS  ORDERED  that,  pursuant  to  the  authority  of  sections  1,  4(  i),  7,  10,  201,  202,  208,  214,  301,  302,  303,  308,  309(  j),  310,  and  710  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.   


 151,  154(  i),  157,  160,  201,  202,  208,  214,  301,  302,  303,  308,  309(  j),  310,  and  610,  this  Order  on  Reconsideration  and  Further  Notice  of  Proposed  Rulemaking  IS  HEREBY  ADOPTED 


 80.  IT  IS  FURTHER  ORDERED  that  Part  20  of  the  Commissions  rules,  47  C.  F.  R.  Part  20,  is  AMENDED  as  specified  in  Appendix  B,  effective  30  days  after  publication  of  the  Order  on 
 Reconsideration  in  the  Federal  Register. 
 81.  IT  IS  FURTHER  ORDERED  that  pursuant  to  applicable  procedures  set  forth  in  Sections  1.415  and  1.  419  of  the  Commissions  Rules,  47  C.  F.  R.    1.415,  1.419,  interested  parties  may  file 


 comments  on  the  Further  Notice  of  Proposed  Rulemaking  on  or  before  60  days  after  publication  of  the  Further  Notice  of  Proposed  Rulemaking  in  the  Federal  Register  and  reply  comments  on  or  before  90  days 
 after  publication  in  the  Federal  Register. 
 82.  IT  IS  FURTHER  ORDERED  that  the  petition  for  reconsideration  of  the  Hearing  Aid  Compatibility  Order  filed  by  the  Cellular  Telecommunications  and  Internet  Association  IS  GRANTED 


 IN  PART  AND  DENIED  IN  PART  to  the  extent  set  forth  herein. 
 83.  IT  IS  FURTHER  ORDERED  that  the  petition  for  reconsideration  of  the  Hearing  Aid  Compatibility  Order  filed  by  Verizon  Wireless  IS  GRANTED  IN  PART  AND  DENIED  IN  PART  to  the 


 extent  set  forth  herein. 
 84.  IT  IS  FURTHER  ORDERED  that  the  petition  for  reconsideration  of  the  Hearing  Aid  Compatibility  Order  filed  by  Research  in  Motion  Limited  IS  GRANTED  to  the  extent  set  forth  herein. 


 85.  IT  IS  FURTHER  ORDERED  that  the  petition  for  reconsideration  of  the  Hearing  Aid  Compatibility  Order  filed  by  the  TDMA  Carriers  (Public  Service  Cellular  Inc.,  Missouri  RSA  No.  7 
 Limited  Partnership  dba  Mid  Missouri  Cellular;  Minnesota  Southern  Wireless  Company  dba  Hickory  Tech,  Northwest  Missouri  Cellular  Limited  Partnership,  Illinois  Valley  Cellular  RSA  2-  1  Limited 
 Partnership,  Illinois  Valley  Cellular  2-  II  Limited  Partnership  and  Illinois  Valley  RSA  2-  III  Limited  Partnership)  and  Rural  Telecommunications  Group  and  IS  GRANTED  IN  PART  to  the  extent  set  forth 
 herein. 
 86.  IT  IS  FURTHER  ORDERED  that  the  Commissions  Consumer  Information  Bureau,  Reference  Information  Center,  SHALL  SEND  a  copy  of  the  Order  on  Reconsideration  and  Further 


 Notice  of  Proposed  Rulemaking,  including  the  Final  Regulatory  Flexibility  Certification  and  the  IRFA,  to  the  Chief  Counsel  for  Advocacy  of  the  Small  Business  Administration. 


 FEDERAL  COMMUNICATIONS  COMMISSION 
 Marlene  H.  Dortch  Secretary 
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 APPENDIX  A 
 PARTIES 
 Parties  Filing  Petitions  (4) 
 Name  of  Party  Abbreviation 
 Cellular  Telecommunications  and  Internet  Association  CTIA 
 Research  in  Motion  Limited  RIM 
 TDMA  Carriers  and  the  Rural  Telecommunications  Group  (joint)  TDMA  Carriers  and  RTG 


 Verizon  Wireless  Verizon 
 Parties  Filing  Comments  As  of  June  2,  2005  (83) 
 Name  of  Party  Abbreviation 
 Alan  J.  Brown 
 Algene  Ott  Mendiola 
 American  National  Standards  Institute  Accredited  Standards  Committee  C63  (EMC)  Subcommittee  8  (Medical  Devices)  ANSI 


 Andrew  B.  Finlayson 
 Angela  Wieker 
 Anne  Pope 
 Arlene  Romoff 
 Association  of  Late-  Deafened  Adults,  Inc.  ALDA 
 Barbara  Bryan 
 Barbara  S.  Dagen 
 BJ  Hoffstadt 
 Carol  Burns 
 Carrie  Welter 
 Cathy  A.  Sanders 
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 Charles  J.  Kantor 
 Clark  O.  Anderson 
 Dana  L.  Simon 
 Daniel  J.  Sheridan 
 David  S.  Viers 
 Dawn  Hayes 
 Debbie  Mohney 
 Diana  Bender 
 Don  Pickens 
 Don  Senger 
 Donald  J.  Ray 
 Electone,  Inc. 
 Esther  Snively 
 Frances  J  Bawden 
 George  De  Vilbiss 
 Harvey  David  Branfield 
 Hearing  Industries  Association 
 Helen  Drosak 
 Henry  Dozier 
 Horst  Arndt 
 International  Hearing  Society  IHS 
 Jeffrey  Winick  and  Wendy  Samuelson 
 Joan  De  Graaff 
 Joan  Haber 
 John  Klein 
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 Judy  Ginsburg 
 Julia  M.  Olson 
 Julie  Springer 
 Karen  Frohib 
 Kathy  Patrick 
 Lawrence  T.  Hagen/  Micro-  Tech  Hearing  Instruments 
 Lillian  Trussell 
 Linda  Day 
 Lois  Itchkawitz 
 Louis  T.  Gnecco  and  Paula  Gnecco/  Better  Hearing,  Inc.  and  Tempest,  Inc. 
 Lynn  Toschi 
 Malisa  W.  Janes,  RH.  D. 
 Marcia  M.  Finisdore 
 Marilyn  Voorhies 
 Martha  Meyer 
 Mary  Amorello 
 Mary  Jo  Russell 
 Mary  Mitchell 
 Mary  Shannon 
 Michael  Eckert 
 Nancy  Dietrich 
 Nellie  Rader 
 Norma  Bauer 
 Pamela  Foody 
 Patrick  Nagle 
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 Paul  Darkes 
 Paul  E.  Hammerschlag,  MD,  FACS 
 Priscilla  Bade,  MD 
 Qualitone  Hearing  Instruments 
 Rachel  Joy 
 Raegene  Castle 
 Roberta  Schiffer 
 Ronda  Kiser 
 Rural  Cellular  Association  RCA 
 Ruth  D.  Bernstein 
 Sara  B.  Wilson 
 Self  Help  for  Hard  of  Hearing  People  SHHH 
 Shelene  Chang 
 Sprint  Corporation  on  behalf  of  Spectrum  L.  P.,  d/  b/  a  Sprint  PCS  Sprint 
 Terry  LaBarbera 
 T-  Mobile  USA,  Inc.  T-  Mobile 
 Tommy  Wells 
 Tom  Victorian 
 Zachary  A.  Hammock/  Omni  Hearing  Systems 
 Parties  Filing  Reply  Comments  (4) 
 Name  of  Party  Abbreviation 
 Cingular  Wireless  LLC  Cingular 
 CTIA 
 RIM 
 RTG 
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 APPENDIX  B 
 FINAL  RULES 
 For  the  reasons  discussed  above,  the  Federal  Communications  Commission  amends  title  47  of  the  Code  of  Federal  Regulations,  Part  20,  as  follows: 


 PART  20    COMMERCIAL  MOBILE  RADIO  SERVICES 
   20.19  Hearing  aid-  compatible  mobile  handsets. 
 *  *  *  *  * 
 1.  Amend    20.19  by  revising  paragraph  (b)  to  add  subsection  (4)  as  follows: 
 (4)  All  factual  questions  of  whether  a  wireless  phone  meets  the  technical  standard  of  this  subsection  shall  be  referred  for  resolution  to  Chief,  Office  of  Engineering  and 
 Technology,  Federal  Communications  Commission,  445  12th  Street  SW,  Washington,  DC  20554. 


 *  *  *  *  * 
 2.  Amend    20.19  by  revising  paragraph  (c)(  2)  to  read  as  follows: 
 (2)  And  each  provider  of  public  mobile  radio  services  must: 
 (i)  (A)  Include  in  its  handset  offerings  at  least  two  handset  models  per  air  interface  that  comply  with    20.  19(  b)(  1)  by  September  16,  2005,  and  make  available  in 
 each  retail  store  owned  or  operated  by  the  provider  all  of  these  handset  models  for  consumers  to  test  in  the  store;  or  (B)  In  the  event  a  provider  of  public  mobile 
 radio  services  is  using  a  TDMA  air  interface  and  plans  to  overbuild  (i.  e.,  replace)  its  network  to  employ  alternative  air  interface(  s),  it  must:  (1)  offer  two  handset 
 models  that  comply  with    20.19(  b)(  1)  by  September  16,  2005,  to  its  customers  that  receive  service  from  the  overbuilt  (i.  e.,  non-  TDMA)  portion  of  its  network, 
 and  make  available  in  each  retail  store  it  owns  or  operates  all  of  these  handset  models  for  consumers  to  test  in  the  store,  (2)  overbuild  (i.  e.,  replace)  its  entire 
 network  to  employ  alternative  air  interface(  s),  and  (3)  complete  the  overbuild  by  September  18,  2006;  and 


 (ii)  Ensure  that  at  least  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  handset  models  the  carrier  offers  nationwide. 
 *  *  *  *  * 
 3.  Amend    20.19  by  revising  paragraph  (c)(  3)(  i)  to  read  as  follows: 
 (3)  Each  Tier  I  carrier  must: 
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 (i)  (A)  Include  in  its  handset  offerings  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  (calculated  based  on  the  total  number  of  unique  digital  wireless  handset  models  the  carrier  offers  nationwide)  per  air 
 interface  that  comply  with    20.19(  b)(  1)  by  September  16,  2005,  and  make  available  in  each  retail  store  owned  or  operated  by  the  carrier  all  of  these  handset 
 models  for  consumers  to  test  in  the  store;  and  (B)  Include  in  its  handset  offerings  five  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  (calculated  based  on  the  total  number  of  unique  digital  wireless  handset  models 
 the  carrier  offers  nationwide)  per  air  interface  that  comply  with    20.19(  b)(  1)  by  September  16,  2006,  and  make  available  in  each  retail  store  owned  or  operated 
 by  the  carrier  all  of  these  handset  models  for  consumers  to  test  in  the  store;  and 
 *  *  *  *  * 
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 number  of  small  entities  that  may  be  affected  by  the  proposed  rules  if  adopted.  The  RFA  generally  defines  the  term  small  entity  as  having  the  same  meaning  as  the  terms  small  business,  small 
 organization,  and  small  governmental  jurisdiction.  220  In  addition,  the  term  small  business  has  the  same  meaning  as  the  term  small  business  concern  under  the  Small  Business  Act.  221  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).  222  As  of  the  year  2002,  according  to  SBA  data,  there  were  approximately  22.4  million  small  businesses  nationwide.  223 


 Neither  the  Commission  nor  the  SBA  has  developed  specific  definitions  for  small  providers  of  the  industries  affected.  Therefore,  throughout  our  analysis,  unless  otherwise  indicated,  the  Commission  uses 
 the  applicable  generic  definitions  under  the  SBA  rules,  and  the  North  American  Industry  Classification  System  (NAICS)  categories.  In  addition,  to  facilitate  our  analysis,  we  utilize  the  Commissions  report, 
 Trends  in  Telephone  Service  (Trends),  published  annually  by  the  Commissions  Wireline  Competition  Bureau.  224  Below,  we  further  describe  and  estimate  the  number  of  small  entities  that  may  be  affected  by 
 the  proposed  rules,  if  adopted. 
 Cellular  and  Other  Wireless  Telecommunications,  and  Paging.  The  SBA  has  developed  a  size  standard  for  wireless  small  businesses  within  the  two  separate  categories  of  Cellular  and  Other  Wireless 
 Telecommunications,  and  Paging.  Under  that  standard,  such  a  business  is  small  if  it  has  1,500  or  fewer  employees.  225  According  to  the  FCC's  Telephone  Trends  Report  data,  975  companies  reported  that  they 
 were  engaged  in  the  provision  of  wireless  service.  226  Of  these  975  companies,  an  estimated  767  have  1,500  or  fewer  employees  and  208  have  more  than  1,500  employees.  Consequently,  we  estimate  that  a 
 majority  of  small  wireless  service  providers  may  be  affected  by  the  proposed  rules,  if  adopted. 
 Wireless  Communications  Equipment  Manufacturers.  The  SBA  has  established  a  small  business  size  standard  for  wireless  communications  equipment  manufacturing.  Under  the  standard,  firms  are 
 considered  small  if  they  have  750  or  fewer  employees.  227  Census  Bureau  data  for  1997  indicates  that,  for  that  year,  there  were  a  total  of  1,215  establishments  228  in  this  category.  229  Of  those,  there  were  1,150  that 


 220  See  5  U.  S.  C.    601(  6). 
 221  5  U.  S.  C.    601(  3)  (incorporating  by  reference  the  definition  of  small  business  concern  in  15  U.  S.  C.    632). 
 Pursuant  to  the  RFA,  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  which  are  appropriate  to  the  activities  of  the  agency  and  publishes  such  definition(  s)  in  the  Federal  Register. 


 222  Small  Business  Act,  5  U.  S.  C.    632  (1996). 
 223  See  SBA,  Programs  and  Services,  SBA  Pamphlet  No.  CO-  0028,  at  page  40  (July  2002). 


 224  FCC,  Wireline  Competition  Bureau,  Industry  Analysis  and  Technology  Division,  Trends  in  Telephone  Service, 
 Table  5.3,  page  5-  5  (May  2004).  This  source  uses  data  that  are  current  as  of  October  22,  2003.  225 
 13  C.  F.  R.    121.201,  NAICS  codes  517211  and  517212.  226 
 Telephone  Trends  Report,  Table  5.  3.  227 
 13  C.  F.  R.    121.  201,  NAICS  code  334220.  228 
 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  (continued.) 
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 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. 
 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.  230  The  SBA  has  developed  a  small  business  size  standard  for  this  category  of  retail  store;  that  size  standard  is  $7.5  or  less  in  annual  revenues.  231 
 According  to  Census  Bureau  data  for  1997,  there  were  8,328  firms  in  this  category  that  operated  for  the  entire  year.  232  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.  233 


 D.  Description  of  Projected  Reporting,  Recordkeeping  and  Other  Compliance  Requirements 
 The  FNPRM  seeks  comment  on  two  of  the  Commissions  existing  hearing  aid  compatibility  rules.  First,  all  retail  outlets  owned  or  operated  by  wireless  carriers  or  service  providers  must  make  live,  in-  store 
 consumer  testing  available  at  this  time.  234  The  Commission  is  seeking  comment  on  extending  this  requirement  to  additional  retail  outlets.  Second,  the  de  minimis  exception  currently  exempts  from  the 
 hearing  aid  compatibility  requirements  wireless  carriers,  service  providers  and  handset  manufacturers  that  offer  two  or  fewer  digital  wireless  handset  models,  and  applies  on  a  per  air  interface  basis.  The 
 Commission  is  seeking  comment  on  narrowing  the  de  minimis  exception  so  as  to  exempt  from  the  hearing  aid  compatibility  requirements  wireless  carriers,  service  providers  and  handset  manufacturers  that  offer 
 one  digital  wireless  handset  model  per  air  interface,  as  well  as  other  potential  ways  to  narrow  the  de  minimis  exception. 


 The  proposals  set  forth  in  the  FNPRM  do  not  entail  reporting,  recordkeeping,  and/  or  third-  party  consultation.  The  FNPRM  seeks  comment  on  two  of  the  Commissions  existing  hearing  aid  compatibility 
 rules. 


 (Continued  from  previous  page)  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. 


 229  U.  S.  Census  Bureau,  1997  Economic  Census,  Industry  Series:  Manufacturing,  "Industry  Statistics  by 
 Employment  Size,"  Table  4,  NAICS  code  334220  (issued  August  1999).  230 
 U.  S.  Census  Bureau,  2002  NAICS  Definitions:  443112  Radio,  Television,  and  Other  Electronics  Stores,  www.  census.  gov  (last  modified  on  May  5,  2003). 


 231  13  C.  F.  R.    121.201,  NAICS  code  443112. 
 232  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. 


 233  Id. 
 234  See  Order  on  Reconsideration  at    IV.  E. 
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 E.  Steps  Taken  To  Minimize  Significant  Economic  Impact  on  Small  Entities,  and  Significant  Alternatives  Considered 
 The  RFA  requires  an  agency  to  describe  any  significant  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)  an  exemption  from  coverage  of  the  rule,  or  any  part  thereof,  for  small  entities.  235 


 The  FNPRM  seeks  comment  two  of  the  Commissions  hearing  aid  compatibility  rules  and  could  impact  small  entities.  As  noted  in  the  Hearing  Aid  Compatibility  Order,  however,  the  critical  nature  of 
 hearing  aid  compatibility  with  wireless  phones  limits  the  Commissions  ability  to  provide  small  wireless  carriers,  service  providers  and  handset  manufacturers  with  a  substantially  less  burdensome  set  of 
 regulations  than  that  placed  on  larger  entities.  236  Nonetheless,  as  set  forth  in  the  Order  on  Reconsideration  and  FNPRM,  the  Commission  continues  to  recognize  that  certain  manufacturers  and 
 service  providers,  which  may  have  only  a  small  presence  in  the  market,  may  be  impacted  by  any  future  actions.  We  specifically  seek  comment  on  alternatives  that  might  lessen  any  adverse  economic  impact  on 
 small  entities,  while  fulfilling  the  goals  of  this  proceeding. 
 F.  Federal  Rules  that  may  Duplicate,  Overlap,  or  Conflict  with  the  Proposed  Rules 
 None. 


 235  5  U.  S.  C.    603(  c). 
 236  See  Hearing  Aid  Compatibility  Order,  App.  B.,  18  FCC  Rcd  at  16798    11. 
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 STATEMENT  OF  COMMISSIONER  KATHLEEN  Q.  ABERNATHY 
 Re:  Section  68.4(  a)  of  the  Commissions  Rules  Governing  Hearing  Aid-  Compatible  Telephones,  Order  on  Reconsideration  and  Further  Notice  of  Proposed  Rulemaking,  WT  Docket  No.  01-  309 
 This  Order  reaffirms  and  clarifies  our  implementation  of  Congresss  important  goal  of  ensuring  access  to  telecommunications  services  for  individuals  with  hearing  disabilities.  Our  action  reiterates  the 
 Commissions  commitment  to  making  sure  members  of  the  hearing-  impaired  community  are  able  to  take  full  advantage  of  the  potential  for  digital  wireless  technologies  to  improve  lives  and  promote  safety.  I 
 also  am  encouraged  by  the  collaborative  efforts  by  wireless  phone  manufacturers,  service  providers,  and  the  hearing  aid  community  to  carry  out  this  public  interest  goal  and  to  make  it  a  reality. 


 I  would  sound  a  note  of  caution  about  todays  further  notice,  however.  In  it,  the  Commission  seeks  comment  on  extending  the  in-  store  consumer  testing  requirement  to  retail  stores  that  are  not  owned 
 or  operated  directly  by  wireless  carriers.  While  I  continue  to  support  testing  requirements  in  connection  with  the  carriers  own  retail  sales  and  urge  independent  retailers  to  do  the  same,  I  believe  we  should  be 
 circumspect  about  any  attempt  to  extend  well  beyond  our  traditional  jurisdiction  to  compel  action  by  independent  retailers  without  a  clear  directive  from  Congress  to  do  so.  I  have  been  a  strong  proponent  of 
 improving  access  for  consumers  with  hearing  disabilities  and  I  continue  to  support  strict  enforcement  of  our  existing  rules,  but  we  should  not  propose  rules  that  we  may  well  lack  authority  to  adopt  and,  in  any 
 case,  probably  cannot  enforce.  The  Commission  should  proceed  very  cautiously  in  this  inquiry. 
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 STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS 
 RE:  Section  68.4(  a)  of  the  Commissions  Rules  Governing  Hearing  Aid-  Compatible  Telephones,  Order  on  Reconsideration  and  Further  Notice  of  Proposed  Rulemaking  (WT  Docket  No. 
 01-  309). 
 Im  happy  to  support  todays  Order,  which  largely  maintains  our  hearing  aid  compatibility  rules  as  they  apply  to  wireless  phones  and  clarifies  the  Commissions  continuing  commitment  to  ensure  access 
 to  digital  wireless  services  by  individuals  with  hearing  loss.  Strong  and  clear  rules  here  are  critical  to  accomplishing  the  statutory  goal  of  ensuring  that  our  Nations  telecommunications  networks  are 
 accessible  to  Americans  with  hearing  loss.  We  heard  from  consumers  across  the  country  about  the  importance  of  one  of  our  rules  in  particular,  the  rule  that  requires  retailers  to  make  in-  store  testing  of 
 hearing  aid  compatible  phones  available  upon  request.  We  wisely  decide  to  maintain  this  rule  today,  and  explore  whether  we  should  extend  it  to  retailers  that  are  not  owned  or  operated  by  wireless  carriers. 


 We  also  alter  our  rules  on  the  number  of  hearing  aid  compatible  handsets  that  must  be  made  available  to  customers.  This  change  is  the  result  of  discussions  between  Self  Help  for  the  Hard  of 
 Hearing  and  CTIA.  Im  hopeful  that  our  new  arrangement  will  benefit  both  consumers  and  carriers.  Id  like  to  commend  Brenda  Battat  of  SHHH  and  Steve  Largent  of  CTIA  for  the  commitment  their 
 organizations  have  shown  to  working  together.  Ive  long  advocated  closer  and  more  regular  exchanges  between  advocates  for  Americans  with  disabilities  and  the  communications  industry;  Im  glad  these 
 discussions  appear  to  be  bearing  fruit;  and  I  look  forward  to  their  continuation  to  ensure  that  the  changes  we  make  today  lead  to  better  access  and  bring  no  unintended  consequence.  I  also  look  forward  to  the 
 broadening  of  these  kinds  of  discussions  to  other  issues  of  mutual  interest. 
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 STATEMENT  OF  COMMISSIONER  JONATHAN  S.  ADELSTEIN 
 Re:  Section  68.4(  a)  of  the  Commissions  Rules  Governing  Hearing  Aid-  Compatible  Telephones;  Order  on  Reconsideration  and  Further  Notice  of  Proposed  Rulemaking; 
 WT  Docket  No.  01-  309 
 I  am  very  pleased  to  support  todays  decision  because  it  reaffirms  our  strong  commitment  to  improving  access  to  digital  mobile  wireless  phones  by  those  Americans  who  use  hearing  aids. 


 Over  the  past  couple  of  years,  I  have  talked  a  lot  about  what  the  public  interest  means  to  me  as  an  FCC  commissioner    about  how  I  have  been  guided  in  making  decisions  by  one  key  principle:  that  the  public 
 interest  means  securing  access  to  communications  for  everyone,  including  those  the  market  may  leave  behind. 


 Whether  its  in  the  field  of  broadcasting,  spectrum-  based  services,  or  competitive  telecommunications  services,  I  have  tried  to  address  this  goal  by  providing  for  access  by  non-  English  speakers,  people  with 
 disabilities,  rural  and  low-  income  consumers,  small  businesses,  and  many  others.  Public  interest  issues,  such  as  protecting  the  rights  of  people  who  use  hearing  aids,  always  should  remain  in  the  forefront  of  our 
 decisions. 
 While  the  Hearing  Aid  Compatibility  (HAC)  Act  of  1988  exempted  mobile  wireless  phones  from  hearing  aid  compatibility,  Congress  specifically  entrusted  this  Commission  with  assessing  the  appropriateness  of 
 continuing  the  exemption.  Soon  after  I  joined  the  Commission,  we  took  that  obligation  to  heart  and  modified  the  exemption  as  it  then  applied  to  digital  mobile  wireless  phones.  Today,  we  rightly  affirm  the 
 large  majority  of  that  decision. 
 However,  we  do  make  one  significant  change  to  our  rules  by  allowing  Tier  I  carriers  the  option  of  making  available  four  digital  wireless  handset  models  per  air  interface  to  satisfy  the  September  16,  2005  initial 
 benchmark.  This  option,  which  is  supported  by  consumer  groups,  will  provide  carriers  with  a  level  of  certainty  that  should  greatly  facilitate  the  management  of  their  supply  chain. 


 It  must  be  highlighted  that  in  advocating  for  this  change,  CTIA  reports  this  increased  certainty  would  enable  Tier  I  members  to  provide  HAC  information  on  call-  out  cards  that  are  a  part  of  the  handset 
 display  in  retail  stores.  The  Tier  I  carriers  also  would  agree  to  provide  low-  end  and  high-  end  HAC-complaint  handsets.  I  very  much  support  this  mutually  agreeable  solution.  I  applaud  CTIAs 
 commitment  and  look  forward  to  the  timely  implementation  of  these  additional  consumer  benefits. 
 I  am  also  encouraged  by  the  progress  in  hearing  aid  compatibility  thats  been  made  since  our  earlier  decision.  The  American  National  Standards  Institute  (ANSI)  committee  working  on  this  issue  recently 
 adopted  and  released  a  draft  version  of  an  updated  hearing  aid  compatibility  standard.  And  we  are  hearing  good  reports  about  the  level  of  cooperation  between  service  providers,  handset  manufacturers, 
 and  representatives  of  the  hard  of  hearing  community  in  working  towards  upcoming  compliance  deadlines. 


 Finally,  we  pose  important  questions  about  two  aspects  of  our  rules  relating  to  expanding  our  in-  store  testing  requirements  to  more  outlets  and  the  scope  of  our  de  minimis  exception.  These  issues  came  up 
 during  the  reconsideration  discussion,  and  I  am  glad  that  we  have  teed  them  up  for  further  comment.  We  want  to  make  sure  we  have  a  full  record  before  considering  whether  or  not  to  further  address  these  issues. 
47