54508 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Rules and Regulations 

10. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and Low 

Income Populations 

Executive Order 12898 (59 FR 7629) 

establishes Federal executive policy on 

environmental justice. Its main 

provision directs Federal agencies, to 

the greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. EPA 

determined that this Final Rule will not 

have disproportionately high and 

adverse human health or environmental 

effects on minority or low-income 

populations because it does not affect 

the level of protection provided to 

human health or the environment. EPA 

has assessed the overall protectiveness 

of designating the disposal sites against 

the criteria established pursuant to the 

MPRSA to ensure that any adverse 

impact to the environment will be 

mitigated to the greatest extent 

practicable. 

11. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A Major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This Final 

Rule will be effective October 8, 2010. 

List of Subjects in 40 CFR Part 228 

Environmental protection, Water 

pollution control. 

Dated: August 31, 2010. 

Jared Blumenfeld, 

Regional Administrator, EPA Region IX. 

■ In consideration of the foregoing, EPA 

amends part 228, chapter I of title 40 of 

the Code of Federal Regulations as 

follows: 

PART 228—[AMENDED] 

■ 1. The authority citation for part 228 

continues to read as follows: 

Authority: 33 U.S.C. 1412 and 1418. 

■ 2. Section 228.15 is amended by 

adding paragraph (l)(12) to read as 

follows: 

§ 228.15 Dumping sites designated on a 

final basis. 

* * * * * 

(l) * * * 

(12) Guam Deep Ocean Disposal Site 

(G–DODS)—Region IX. 

(i) Location: Center coordinates of the 

circle-shaped site are: 13°35.500′ North 

Latitude by 144°28.733′ East Longitude 

(North American Datum from 1983), 

with an overall diameter of 3 nautical 

miles (5.6 kilometers). 

(ii) Size: 7.1 square nautical miles 

(24.3 square kilometers) overall site. 

(iii) Depth: 8,790 feet (2,680 meters). 

(iv) Use Restricted to Disposal of: 

Suitable dredged materials. 

(v) Period of Use: Continuing use. 

(vi) Restrictions: Disposal shall be 

limited to a maximum of 1 million cubic 

yards (764,555 cubic meters) per 

calendar year of dredged materials that 

comply with EPA’s Ocean Dumping 

Regulations; disposal operations shall 

be conducted in accordance with 

requirements specified in a Site 

Management and Monitoring Plan 

developed by EPA and USACE, to be 

reviewed at least every 10 years. 

* * * * * 

[FR Doc. 2010–22324 Filed 9–7–10; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 20 

[WT Docket No.07–250; FCC 10–145] 

Amendment of the Commission’s 

Rules Governing Hearing AidCompatible Mobile Handsets 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the Federal 

Communications Commission (FCC) 

adopts final rules governing wireless 

hearing aid compatibility that are 

intended to ensure that consumers with 

hearing loss are able to access wireless 

communications services through a 

wide selection of handsets without 

experiencing disabling interference or 

other technical obstacles. 

DATES: Effective October 8, 2010, except 

for the amendments to § 20.19(f) which 

contain information collection 

requirements that have not been 

approved by the Office of Management 

and Budget (OMB). The Commission 

will publish a document in the Federal 

Register announcing the effective date 

of these amendments. On June 6, 2008 

(73 FR 25566, May 7, 2008), the Director 

of the Federal Register approved the 

incorporation by reference of a certain 

publication listed in this final rule. 

FOR FURTHER INFORMATION CONTACT: John 

Borkowski, Wireless 

Telecommunications Bureau, (202) 418– 

0626, e-mail John.Borkowski@fcc.gov. 

For additional information concerning 

the Paperwork Reduction Act 

information collection requirements 

contained in this document, send an 

e-mail to PRA@fcc.gov or contact Judith 

B. Herman at 202–418–0214 or via the 

Internet at Judith-B.Herman@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Policy 

Statement and Second Report and Order 

in WT Docket No.07–250; FCC 10–145, 

adopted August 5, 2010, and released on 

August 5, 2010. This summary should 

be read with its companion document, 

the further notice of proposed 

rulemaking summary published 

elsewhere in this issue of the Federal 

Register. The full text of the Policy 

Statement and Second Report and Order 

is available for public inspection and 

copying during business hours in the 

FCC Reference Information Center, 

Portals II, 445 12th Street SW., Room 

CY–A257, Washington, DC 20554. It 

also may be purchased from the 

Commission’s duplicating contractor at 

Portals II, 445 12th Street SW., Room 

CY–B402, Washington, DC 20554; the 

contractor’s Web site, http:// 

www.bcpiweb.com; or by calling 

(800) 378–3160, facsimile (202) 488– 

5563, or e-mail FCC@BCPIWEB.com. 

Copies of the public notice also may be 

obtained via the Commission’s 

Electronic Comment Filing System 

(ECFS) by entering the docket number 

WT Docket No.07–250. Additionally, 

the complete item is available on the 

Federal Communications Commission’s 

Web site at http://www.fcc.gov. 

Synopsis of the Policy Statement and 

Second Report and Order 

I. Introduction 

1. In this Policy Statement and 

Second Report and Order (Second R&O), 

the Commission affirms that our hearing 

aid compatibility rules must provide 

people who use hearing aids and 

cochlear implants with continuing 

access to the most advanced and 

innovative technologies as science and 

markets develop, while maximizing the 

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Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Rules and Regulations 54509 

conditions for innovation and 

investment. 

2. The Commission also takes several 

actions to clarify its rules to keep pace 

with developments in technology and 

the market. The Commission clarifies 

that its hearing aid compatibility rules 

cover customer equipment that contains 

a built-in speaker and is designed to be 

typically held to the ear, adopts a 

streamlined procedure for amending its 

rules to incorporate an anticipated 

revision of the hearing aid compatibility 

technical standard that will make it 

generically applicable across frequency 

bands and interface modes, and extends 

its disclosure requirements to provide 

consumers with information about 

multi-band and multi-mode phones that 

operate in part over bands or modes for 

which technical standards have not 

been established. 

3. In order to ensure that people with 

hearing loss will have access to new and 

popular models, while continuing to 

protect the ability of small companies to 

compete and to foster innovation by 

new entrants, the Commission modifies 

the de minimis exception in its existing 

rule so that companies that are not small 

entities will be required to offer at least 

one hearing aid-compatible model after 

a two-year initial period. In recognition 

of specific challenges that this rule 

change will impose for handsets 

operating over the legacy GSM air 

interface in the 1900 MHz band, the 

Commission permits companies that 

will no longer qualify for the de minimis 

exception to meet hearing aid 

compatibility requirements by installing 

software that enables customers to 

reduce the power output by a limited 

amount for such operations. The 

Commission also amends its rules 

requiring manufacturers to deploy 

hearing aid-compatible handsets so that 

they apply to handsets sold through all 

distribution channels, and not only 

through service providers. 

4. The Commission also notes that 

later this year, the Commission intends 

to initiate a comprehensive review of 

the operation of our wireless hearing aid 

compatibility rules. In that review, the 

Commission will evaluate the success of 

our rules in making a broad selection of 

wireless phones accessible to 

individuals with hearing loss, and the 

Commission will consider whether 

further revisions to those rules are 

appropriate. 

II. Background 

5. The Commission is required by law 

to ensure that persons with hearing loss 

have access to telephone service. The 

Hearing Aid Compatibility Act of 1988 

required all telephones manufactured or 

imported for use in the United States to 

meet established technical standards for 

hearing aid compatibility, with certain 

exceptions, among them an exception 

for telephones used with mobile 

wireless services. The statute required 

the Commission to revoke or limit the 

exemption if it determined that: 

• Such revocation or limitation is in 

the public interest; 

• Continuation of the exemption 

without such revocation or limitation 

would have an adverse effect on people 

with hearing loss; 

• Compliance with the requirements 

adopted is technologically feasible for 

the telephones to which the exemption 

applies; and 

• Compliance with the requirements 

adopted would not increase costs to 

such an extent that the telephones to 

which the exemption applies could not 

be successfully marketed. 

6. Current Hearing Aid Compatibility 

Requirements. The Commission’s 

requirements apply generally to 

providers of digital commercial mobile 

radio services (CMRS) ‘‘to the extent that 

they offer real-time, two-way switched 

voice or data service that is 

interconnected with the public switched 

network and utilizes an in-network 

switching facility that enables the 

provider to reuse frequencies and 

accomplish seamless hand-offs of 

subscriber calls,’’ as well as to 

manufacturers of wireless phones used 

in the delivery of such services. The 

applicability of the requirements is 

further limited to those air interfaces 

and frequency bands (800–950 MHz and 

1.6–2.5 GHz) for which technical 

standards are stated in the most recent 

revision of the American National 

Standards Institute (ANSI) standard 

governing wireless hearing aid 

compatibility (ANSI C63.19–2007). 

7. The Commission’s hearing aid 

compatibility requirements address 

hearing aids that operate in either of two 

modes—acoustic coupling or inductive 

coupling. Hearing aids operating in 

acoustic coupling mode receive sound 

through a microphone and then amplify 

all sounds surrounding the user, 

including both desired sounds, such as 

a telephone’s audio signal, and 

unwanted ambient noise. Hearing aids 

operating in inductive coupling mode 

turn off the microphone to avoid 

amplifying unwanted ambient noise, 

instead using a telecoil to receive only 

audio signal-based magnetic fields 

generated by inductive coupling-capable 

telephones. 

8. The rules codify the ANSI C63.19 

performance levels as the applicable 

technical standard for hearing aid 

compatibility. Beginning January 1, 

2010, new applications for certification 

must use the 2007 version of the ANSI 

standard, although earlier grants of 

certification using prior versions of the 

standard remain valid. The Commission 

has delegated to the Wireless 

Telecommunications Bureau (WTB) and 

Office of Engineering and Technology 

(OET) authority to adopt by rulemaking 

future revisions of ANSI C63.19, 

including extensions of the technical 

standards to new frequency bands and 

air interfaces, provided the revisions do 

not raise major compliance issues. 

9. The Commission generally requires 

each covered manufacturer to offer to 

service providers, and each service 

provider to offer to its customers, 

specific numbers of handset models per 

air interface in its product line that 

meet, at a minimum, an M3 rating for 

reduction of radio frequency (RF) 

interference between handsets and 

hearing aids operating in acoustic 

coupling mode and a T3 rating to enable 

inductive coupling with hearing aids 

operating in telecoil mode. These 

minimum deployment requirements 

vary depending on the total number of 

models that the manufacturer or service 

provider offers over the air interface, 

and they increase over time from 

February 15, 2009, to May 15, 2011. 

10. The rules also contain a de 

minimis exception to the deployment 

benchmarks for certain digital wireless 

handset manufacturers and wireless 

service providers. Specifically, 

manufacturers or providers that only 

offer one or two handset models per air 

interface are exempt from all hearing aid 

compatibility requirements, other than 

the reporting requirements; those that 

only offer three models are required to 

offer one that is hearing aid-compatible. 

11. In addition, the rules require 

service providers to make hearing aidcompatible models available for 

consumer testing in their owned or 

operated retail stores. The rules also 

require service providers and 

manufacturers to disclose in their 

packaging materials certain information 

about hearing aid-compatible handsets. 

Manufacturers and service providers 

must report annually on efforts toward 

compliance with the hearing aid 

compatibility requirements. In addition, 

manufacturers and service providers 

that operate publicly accessible Web 

sites are required to list on their Web 

sites all hearing aid-compatible models 

that they offer along with the ratings of 

those models and an explanation of the 

ratings. 

III. Policy Statement 

12. Consistent with Congressional 

intent to afford equal access to 

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54510 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Rules and Regulations 

communications networks to the fullest 

extent feasible and longstanding Federal 

Communications Commission 

precedent, it is the policy of the 

Commission that our hearing aid 

compatibility rules provide people who 

use hearing aids and cochlear implants 

with continuing access to the most 

advanced and innovative technologies 

as science and markets develop. The 

Commission believes that following 

three principles will ensure that all 

Americans, including Americans with 

hearing loss, will reap the full benefits 

of new technologies as they are 

introduced into the marketplace. To 

maximize the number of accessible 

products for this population, our 

policies must adhere to these principles: 

• First, given that consideration of 

accessibility from the outset is more 

efficient than identifying and applying 

solutions retroactively, the Commission 

intends for developers of new 

technologies to consider and plan for 

hearing aid compatibility at the earliest 

stages of the product design process; 

• Second, the Commission will 

continue to account for technological 

feasibility and marketability as the 

Commission promulgates rules 

pertaining to hearing aid compatibility, 

thereby maximizing conditions for 

innovation and investment; and 

• Third, the Commission will provide 

industry with the ability to harness 

innovation to promote inclusion by 

allowing the necessary flexibility for 

developing a range of solutions to meet 

consumers’ needs while keeping up 

with the rapid pace of technological 

advancement. 

IV. Second Report and Order 

A. Handsets and Services Covered 

1. Handsets Covered by the Rule 

13. As an initial matter, the 

Commission amends our rules to clarify 

that hearing aid compatibility 

requirements apply to otherwise 

covered handsets that contain a built-in 

speaker and are typically held to the ear. 

This determination is consistent with 

the first of the Multi-Band Principles 

filed on September 11, 2008, by a 

working group of industry and 

consumer representatives, which states 

that those principles apply to ‘‘handsets 

operating in a normal voice mode and 

typically held to the ear.’’ In the order 

in which we first adopted wireless 

hearing aid compatibility rules (2003 

Hearing Aid Compatibility Order), the 

Commission stated that devices that do 

not have any built-in speaker or ear 

piece would not be required to meet 

hearing aid compatibility requirements 

because they were unlikely to cause RF 

interference to hearing aids and they 

could not be feasibly equipped with a 

functioning telecoil. Consistent with 

that observation, the Commission 

amends our rules to define a covered 

‘‘handset’’ as a device that contains a 

built-in speaker and is typically held to 

the ear in any of its ordinary uses. Thus, 

if a wireless device is not designed to 

be typically held to the ear in any 

ordinary use, but only provides voice 

communication through a 

speakerphone, headphone or other 

instrument that carries voice 

communications from the handset to the 

ear, or other means that does not 

involve holding it to the ear, it is not 

subject to our hearing aid compatibility 

requirements. The Commission clarifies 

that in this respect, ‘‘typically’’ 

encompasses any intended or 

anticipated ordinary use, and does not 

mean ‘‘usually’’ or ‘‘most often.’’ If a 

device is configured so as to enable a 

user to hold it to the ear to receive voice 

communications in any ordinary 

anticipated application, it is a ‘‘handset’’ 

covered by the rule even if the 

manufacturer or service provider 

expects that most users will operate it 

in a speakerphone or other mode. 

14. In the Notice in this proceeding, 

the Commission asked ‘‘[w]hat 

constitutes a telephone in the context of 

devices that more closely resemble 

mobile computers but have voice 

communications capabilities’’ and 

whether the Commission should 

broaden or otherwise modify the scope 

of its hearing aid compatibility rules in 

order to maintain technology neutrality 

and ensure the continuing availability of 

a selection of wireless services and 

features that is comparable to that 

available to the general population. 

Consistent with our general 

determination, a device that includes 

both computing and covered voice 

communication capabilities is subject to 

hearing aid compatibility requirements 

so long as it has a built-in speaker and 

is designed to be typically held to the 

ear. This scope is necessary to ensure 

that people with hearing loss will have 

access to all means of voice 

communication as devices become 

increasingly multifunctional and the 

lines among device categories continue 

to blur. 

2. Application of Technical Standard to 

New Bands and Air Interfaces 

15. Background. ANSI Standard 

C63.19–2007 provides hearing aid 

compatibility tests for wireless handsets 

that use voice communications 

technologies that are in common use in 

the 800 MHz to 950 MHz and 1600 MHz 

to 2500 MHz bands. Accordingly, our 

rules impose hearing aid compatibility 

requirements only on handsets that 

provide service over these frequency 

bands using any air interface for which 

technical standards exist in the ANSI 

C63.19 standard. The Commission has 

delegated to WTB and OET limited 

authority by rulemaking to adopt new 

technical standards for additional 

frequency bands and air interfaces as 

they are established by the ANSI 

Accredited Standards Committee C63TM

and to approve new hearing aid 

compatibility standards adopted 

subsequently to ANSI C63.19–2007. 

16. The Multi-Band Principles filed 

on September 11, 2008, to address the 

hearing aid compatibility of handsets 

that operate over multiple frequency 

bands or voice technology modes, some 

of which have no established hearing 

aid compatibility standards. The MultiBand Principles propose a sequence of 

events to be followed when a new 

service is developed over a frequency 

band or air interface that is not yet 

subject to a hearing aid compatibility 

technical standard. Specifically, the 

Multi-Band Principles propose that a 

preliminary predictive analysis method 

should be employed to determine the 

likelihood of hearing aid compatibility 

issues for handsets when they operate 

over new frequency bands or air 

interfaces. If no issues are identified by 

this analysis and the handset is 

otherwise hearing aid-compatible, then 

the handset would be deemed hearing 

aid-compatible over all frequencies and 

bands in which it operates, including 

new technologies, and no further testing 

would be required. If a potential hearing 

aid compatibility issue is identified, 

then an ANSI-accredited body would 

devise a hearing aid compatibility 

standard within a timeframe to be set by 

the Commission. Beginning 12 months 

after standards for hearing aid 

compatibility have been developed and 

adopted by the Commission, a new 

handset model that operates in a new 

frequency band or air interface could 

not be labeled or counted as hearing aidcompatible if it does not meet the newly 

adopted hearing aid compatibility 

standard, although handsets certified 

prior to that point could continue to be 

counted as hearing aid-compatible. 

17. More recently, ANSI Committee 

C63 has developed a new draft standard 

that would revise the current ANSI 

C63.19–2007 standard. The new draft 

standard provides for a testing method 

that could be used for handsets using 

any air interface and operating over any 

frequency between 698 MHz and 6 GHz. 

Under this testing method, a product 

testing threshold has been established 

based on certain RF power levels and 

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Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Rules and Regulations 54511 

modulation characteristics. The new 

draft standard provides that handsets 

operating at or below the testing 

threshold will be exempt from further 

testing and will be considered to have 

an M4 rating. Handsets incorporating air 

interfaces and frequency bands that fail 

the testing threshold criteria will be 

required to undergo full testing in 

accordance with the revised ANSI 

C63.19 standard. ANSI states that the 

revised standard has completed an 

initial round of balloting and roundrobin testing, and that it expects final 

balloting to be completed by the fourth 

quarter of 2010. 

18. Discussion. In anticipation that 

ANSI will adopt the draft standard or 

something similar, the Commission 

finds it unnecessary to adopt the full 

regime set forth in the Multi-Band 

Principles for handsets operating over 

air interfaces or frequency bands that 

lack standards. Rather, the ANSI draft 

standard enables testing over frequency 

bands or air interfaces expected to be 

incorporated in wireless handsets in the 

near future. Consistent with Sections 

20.19(k)(1) and (2) of our rules, the 

Commission delegates to WTB and OET 

the authority to adopt a new standard 

similar to the draft revision by 

rulemaking, and the Commission directs 

them to complete such a proceeding 

promptly following the adoption of such 

a standard by ANSI. In the event ANSI 

has not adopted a standard similar to 

the draft revision by March 31, 2011, the 

Commission will revisit its decision to 

withhold action on this portion of the 

Multi-Band Principles. 

19. Under Section 20.19(k)(1), new 

obligations imposed on manufacturers 

and service providers as a result of 

WTB’s and OET’s adoption of technical 

standards for additional frequency 

bands and/or air interfaces shall become 

effective no less than one year after 

release of the adopting order for 

manufacturers and CMRS providers 

with nationwide footprints (Tier I 

carriers) and no less than 15 months 

after release for other service providers. 

Consistent with this delegation of 

authority, the Commission expects that 

rules implementing the ANSI draft 

standard, if adopted, will apply as 

follows: No less than 12 months after 

release of the order adopting the 

standard, but at a later date if WTB and 

OET determine that a longer transition 

period is warranted, the benchmarks 

then in effect for other air interfaces will 

apply to manufacturers and Tier I 

carriers offering handsets using newly 

covered frequency bands or air 

interfaces. No less than 15 months after 

release of the order adopting the 

standard, but at a later date if WTB and 

OET determine that a longer transition 

period is warranted, the same 

benchmarks will apply to other service 

providers. These rules will apply to all 

handsets and services within the scope 

of the rule unless otherwise specified by 

the Commission. The authority 

delegated to WTB and OET does not 

permit any actions that depart 

substantially from this regime. 

20. While the Commission finds it 

unnecessary to adopt the Multi-Band 

Principles in whole, the Commission 

focuses special attention on Principle 3, 

which encourages wireless carriers and 

manufacturers to consider hearing aid 

compatibility and identify issues early 

in the design and development of 

handsets. Early identification of hearing 

aid compatibility issues enables their 

resolution earlier and, in many cases, 

less expensively than when interference 

is identified in the end stages of handset 

development. Addressing hearing aid 

compatibility early on also ensures that 

handsets that operate over new 

frequency bands or voice technology 

modes will be made available to 

consumers with hearing loss as closely 

as possible to their availability to the 

general public. 

3. Multi-Band and Multi-Mode Handsets 

21. Background. Under the 

Commission’s rules, in order to be 

offered as hearing aid-compatible, a 

handset must meet hearing aid 

compatibility standards for every 

frequency band and air interface that it 

uses for which standards have been 

adopted by the Commission. In the 

Notice, the Commission tentatively 

concluded that, consistent with this 

principle, multi-band and multi-mode 

phones should not be counted as 

compatible in any band or mode if they 

operate over any air interface or 

frequency band for which technical 

standards have not been established. 

The Commission reasoned that this 

limitation would conform to consumers’ 

expectation that a phone labeled 

‘‘hearing aid-compatible’’ is compatible 

in all its operations, and also that it 

would create incentives to develop new 

compatibility standards more quickly. 

In the First Report and Order in 

February 2008, the Commission 

recognized that multi-mode handsets 

were already on the market that 

included Wi-Fi capability, and it 

adopted an interim rule to address their 

status. Under the interim rule, such 

handsets may be counted as hearing aidcompatible if they meet hearing aid 

compatibility standards over all 

frequency bands and air interfaces for 

which standards exist, but the 

manufacturer and service provider must 

clearly disclose to consumers that the 

handset has not been rated for hearing 

aid compatibility with respect to Wi-Fi 

operation. 

22. The Multi-Band Principles 

propose that operations over frequency 

bands or air interfaces for which 

standards do not exist be tested using 

either the nearest existing approved 

standard or a preliminary predictive 

analysis method that the parties would 

work with ANSI to develop. If the 

preliminary predictive analysis 

determines that such operations raise no 

hearing aid compatibility issues, it 

would not be necessary to develop a 

measurement procedure for the 

operations, and handsets operating over 

these frequency bands or air interfaces 

would be considered hearing aidcompatible if they meet hearing aid 

compatibility standards over all 

frequency bands and air interfaces for 

which such standards exist. If hearing 

aid compatibility issues are identified, 

then during the period until a 

measurement procedure is developed 

and adopted by the Commission, such 

handsets that otherwise meet hearing 

aid compatibility standards would be 

considered hearing aid-compatible, but 

information that they have not been 

tested for all operations would have to 

be conveyed in writing to consumers at 

the point of sale and through company 

Web sites. Beginning 12 months after 

the new standard is adopted by the 

Commission, a newly produced model 

could not be counted as hearing aidcompatible for any of its operations 

unless it meets the hearing aid 

compatibility standard for the new 

operation; however, handsets previously 

counted as hearing aid-compatible 

could continue to be so counted. 

23. Discussion. As discussed 

previously, if the expected draft revision 

of Standard C63.19 is adopted by ANSI 

and the Commission, the treatment of 

multi-band and multi-mode handsets 

will become moot because there will be 

no operations without technical 

standards in the foreseeable future. 

Nonetheless, the Commission expects it 

will take a minimum of two years until 

any such standards have been adopted 

and compliance becomes mandatory for 

all services. Meanwhile, handsets that 

incorporate new frequency bands and 

air interfaces capable of supporting 

voice services other than Wi-Fi are 

already coming on the market. 

Therefore, for this interim period, the 

Commission extends to all handsets that 

incorporate these new frequency bands 

and air interfaces the same counting and 

disclosure rules that currently apply to 

handsets with Wi-Fi. In other words, a 

handset that meets hearing aid 

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54512 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Rules and Regulations 

compatibility requirements over all air 

interfaces and frequency bands for 

which technical standards have been 

established, but that is also capable of 

supporting voice operations in new 

frequency bands and air interfaces for 

which standards do not exist, may be 

counted as hearing aid-compatible, 

provided consumers are clearly 

informed that it has not been tested for 

the operations for which there are no 

standards. This is consistent with the 

proposal in the Multi-Band Principles, 

which informs consumers that the 

handset has not been tested and rated in 

all wireless technologies incorporated in 

the phone, and that the consumer 

should thoroughly test all phone 

features to determine whether the 

consumer experiences any interfering 

noise. 

24. As recommended in the MultiBand Principles, the Commission 

requires that for newly manufactured 

handsets covered by this rule, the 

following disclosure language be clearly 

and effectively conveyed to consumers 

wherever the hearing aid compatibility 

rating for the handset is provided, 

including at the point of sale and on 

company Web sites: ‘‘This phone has 

been tested and rated for use with 

hearing aids for some of the wireless 

technologies that it uses. However, there 

may be some newer wireless 

technologies used in this phone that 

have not been tested yet for use with 

hearing aids. It is important to try the 

different features of this phone 

thoroughly and in different locations, 

using your hearing aid or cochlear 

implant, to determine if you hear any 

interfering noise. Consult your service 

provider or the manufacturer of this 

phone for information on hearing aid 

compatibility. If you have questions 

about return or exchange policies, 

consult your service provider or phone 

retailer.’’ The Commission has slightly 

revised the language proposed in the 

Multi-Band Principles in recognition 

that not all handsets are obtained from 

service providers. The Commission 

concludes that a uniform text will 

ensure that consumers are provided 

with consistent and sufficient 

information. However, handsets that are 

already on the market with other 

disclosure language that complies with 

our current rule will not be required to 

replace this with the newly prescribed 

language. 

25. This disclosure rule will apply to 

all handsets that operate in part over an 

air interface or frequency band that is 

not covered by the ANSI C63.19–2007 

standard until the date when rules 

adopting any new standard become 

effective. The rule will also apply after 

rules adopting a new standard become 

effective to the extent that a handset 

model in fact has not been tested for 

previously uncovered operations under 

the new standard. However, a handset 

that has actually completed testing and 

been found to meet hearing aid 

compatibility standards under the new 

standard should not be described as not 

tested, but should be labeled with its 

hearing aid compatibility rating. 

Consistent with the recommendation in 

the Multi-Band Principles, a handset 

model launched earlier than 12 months 

after publication in the Federal Register 

of rules adopting any new standard 

could continue to be counted as hearing 

aid-compatible for operations covered 

under ANSI C63.19–2007 even if it does 

not meet the newly adopted standard for 

all other operations. Rather than 

describing such handsets as not fully 

tested, the disclosure should indicate 

that the phone does not meet hearing 

aid compatibility standards for some 

new technologies. WTB and OET shall 

promulgate rules to implement this 

modified disclosure requirement in 

their proceeding to consider adopting 

any revision of the ANSI standard. 

26. Finally, the Commission clarifies 

that the disclosure requirement includes 

handsets that are capable of supporting 

software that can activate additional 

voice capability. For example, some 

handsets that transmit and receive data 

over a Wi-Fi air interface do not contain 

within them the software to use Wi-Fi 

for voice communications, but will 

accommodate commercially available 

software to enable voice transmissions 

over Wi-Fi. Other air interfaces such as 

LTE and WiMAX, while not currently 

used for voice transmissions, may 

accommodate software that would 

enable them to be used for voice 

communication without any change to 

the hardware in the underlying handset. 

Unless they are informed to the 

contrary, consumers may reasonably 

expect that handsets which are labeled 

as hearing aid-compatible will function 

properly with their hearing aids in all 

modes of operation for voice 

communication that can be reasonably 

anticipated. The Commission therefore 

finds that this disclosure requirement 

will afford consumers with hearing loss 

the opportunity to inquire further about 

their ability to use the device in all 

voice modes and make an informed 

choice about whether the device meets 

the consumer’s needs and expectations. 

B. De Minimis Exception 

27. Background. Section 20.19 of the 

Commission’s rules provides a de 

minimis exception to hearing aid 

compatibility obligations for those 

manufacturers and mobile service 

providers that only offer a small number 

of handset models. Specifically, Section 

20.19(e)(1) provides that manufacturers 

and mobile service providers offering 

two handset models or fewer in the 

United States over an air interface are 

exempt from the requirements of 

Section 20.19, other than the reporting 

requirement. Section 20.19(e)(2) 

provides that manufacturers or mobile 

service providers that offer three 

handset models over an air interface 

must offer at least one compliant model. 

28. Discussion. In order to ensure that 

consumers who use hearing aids have 

access to a variety of phones, while 

preserving competitive opportunities for 

small companies as well as 

opportunities for innovation and 

investment, the Commission modifies 

the de minimis rule as applied to 

companies that are not small entities. 

Specifically, the Commission decides 

that beginning two years after it offers 

its first handset model over an air 

interface, a manufacturer or service 

provider that is not a small entity, as 

defined herein, must offer at least one 

model that is rated M3 or higher and at 

least one model that is rated T3 or 

higher if it offers one, two or three total 

handset models. In order to maintain 

parity and to allow entities that have 

been relying on the de minimis rule a 

reasonable period for transition, this 

obligation will become effective for 

manufacturers and service providers 

that offer one or two handset models 

over an air interface two years after the 

latest of the following: The date the 

manufacturer or service provider began 

offering handsets over the air interface, 

the date this Order is published in the 

Federal Register, the date a hearing aid 

compatibility technical standard is 

adopted for the relevant operation, or 

the date a previously small entity no 

longer meets our small entity definition. 

In addition, the Commission permits 

manufacturers and service providers 

that would have come under the 

amended de minimis rule but for their 

size to satisfy hearing aid compatibility 

deployment requirements for the legacy 

GSM air interface by relying on a 

handset that allows consumers to 

reduce the maximum power output only 

for operations over the GSM air 

interface in the 1900 MHz band by no 

more than 2.5 decibels (dB) in order to 

meet the RF interference standard. 

29. In conjunction with these 

modifications to the de minimis rule, 

the Commission also revises our 

‘‘refresh’’ rule to clarify its application to 

manufacturers that will be newly 

subject to hearing aid compatibility 

requirements. The refresh rule states 

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that if a manufacturer offers any new 

models for a particular air interface, it 

must offer in each calendar year a 

number of new models rated M3 or 

higher that is equal to at least half of its 

total required number of models rated 

M3 or higher, except that a 

manufacturer that offers three models 

over an air interface must offer at least 

one new model rated M3 or higher every 

other calendar year. Consistent with the 

purposes of this rule, the Commission 

now requires manufacturers that are not 

small entities that offer two models over 

an air interface, after the first two years, 

to introduce at least one new model 

rated M3 or higher every other year. 

30. Retention of de minimis rule for 

small entities. The de minimis rule 

serves two purposes. One purpose is to 

ensure that small manufacturers and 

service providers have an opportunity to 

compete in the market. When the 

Commission first adopted the de 

minimis exception in 2003, it stressed 

the disproportionate impact that hearing 

aid compatibility requirements could 

have on small manufacturers or those 

that sell only a small number of digital 

wireless handset models in the United 

States, as well as on service providers 

that offer only a small number of digital 

wireless handset models. In order to 

further this procompetitive interest, the 

Commission retains the de minimis 

exception in full for small entities. The 

Commission concludes that the benefits 

to competition outweigh any consumer 

harm from not requiring these small 

entities to offer hearing aid-compatible 

telephones. 

31. For purposes of this rule, the 

Commission defines ‘‘small entity’’ by 

adopting size standards consistent with 

those of the Small Business 

Administration (SBA). The relevant 

SBA categories are: (1) Wireless 

communications service providers 

(except satellite), and (2) radio and 

television broadcasting and wireless 

communications equipment 

manufacturing. A wireless 

communications service provider is 

small if it is independently owned and 

operated, is not dominant in its field of 

operation, and has 1,500 or fewer 

employees. Independently owned and 

operated, non-dominant firms in the 

category of radio and television 

broadcasting and wireless 

communications equipment 

manufacturers are considered small if 

they have 750 or fewer employees. 

Accordingly, the Commission will use 

1,500 or fewer employees for wireless 

communications service providers and 

750 or fewer employees for wireless 

communications equipment 

manufacturers as the size standards for 

applying the de minimis rule. 

32. Limitation of the de minimis rule 

for companies that are not small 

entities. In addition to preserving 

competitive opportunities for small 

entities, the de minimis rule also helps 

ensure that new entrants to the market 

have the opportunity to innovate. In the 

First Report and Order, the Commission 

expressed its concern that the de 

minimis rule ‘‘not be limited in a 

manner that would compromise its 

effectiveness in promoting innovation 

and competition.’’ Several commenters 

contend that the de minimis rule allows 

new entrants to the handset 

manufacturing marketplace to develop 

innovative handsets and expeditiously 

bring them to market. 

33. The Commission recognizes that 

new entrants may bring innovations to 

the wireless handset market, and that 

they may be discouraged from doing so 

if their first products are required to 

meet specific technical mandates. Thus, 

the Commission continues to apply the 

existing de minimis rule during the first 

two years that a manufacturer or service 

provider of any size is offering handsets, 

and during the first two years that an 

established entity is offering handsets 

over a particular air interface. The 

Commission is not persuaded, however, 

that the interest in innovation requires 

preserving the de minimis exception for 

large entities indefinitely. Once an 

entity with substantial resources is 

established as a manufacturer or service 

provider, it should be able to offer some 

handsets that meet the needs of 

consumers with hearing aids at the same 

time as it is innovating and investing. 

34. The Commission notes that while 

several commenters argue that the de 

minimis rule is necessary to allow new 

entrants to innovate, they generally do 

not specifically argue that this requires 

the exception to be maintained 

indefinitely. To the contrary, they 

contend that manufacturers will 

typically expand their product offerings 

and meet hearing aid compatibility 

requirements after an initial period. 

Indeed, some parties have recently 

proposed a limitation of the de minimis 

exception to two years as a possible 

alternative to the current rule. The 

Commission notes that Apple, Inc. 

(Apple) has used the de minimis rule 

over the past three years to continue 

offering its iPhone without full hearing 

aid compatibility. However, Apple’s 

stated need for the de minimis 

exception is due to technical 

circumstances surrounding GSM 

operation over the 1900 MHz band by 

products with thin form configurations, 

which the Commission addresses below. 

To the extent other unique 

circumstances may arise in the future, 

the Commission finds they would be 

better addressed through case-by-case 

consideration, rather than by retaining 

an overly broad de minimis rule that 

potentially denies access to handsets by 

people with hearing loss. 

35. The Commission is not persuaded 

by arguments that market forces render 

modification of the de minimis rule 

unnecessary. Several commenters argue 

that after a period of time, 

manufacturers will naturally expand 

their product offerings and thereby 

become subject to hearing aid 

compatibility requirements. While such 

an expansion of portfolios occurs in 

many instances, it has not occurred, for 

example, with Apple. Other 

commenters argue that in light of the 

large number of hearing aid-compatible 

handsets that are currently on the 

market, it is unnecessary to apply 

hearing aid compatibility requirements 

to large entities with limited product 

lines. This argument overlooks that each 

company that offers a hearing aidcompatible handset adds to the diversity 

of choices on the market, and therefore 

there is a public interest benefit to 

defining the exception no more broadly 

than necessary to promote competition 

and innovation. 

36. The two-year entry period. In 

order to preserve the opportunity for 

new entrants to develop innovative 

products and services, the de minimis 

rule will continue to be available during 

the first two years that a manufacturer 

or service provider is in the relevant 

business. Similarly, a manufacturer or 

service provider of any size may 

continue to use the de minimis rule 

during the first two years that it offers 

handsets that operate over a particular 

air interface. The Commission finds 

that, in light of typical industry product 

cycles, two years is an appropriate 

period for a company that is not a small 

entity to introduce a hearing aidcompatible handset. For example, Apple 

introduced its third iPhone model 

within approximately two years after 

bringing the original iPhone to market. 

While the interest in innovation 

counsels in favor of permitting any 

company to introduce its first handset 

model over an air interface without 

meeting hearing aid compatibility 

standards, the public interest requires 

that a sizable company, once it is on its 

second or third generation of handsets, 

place a high enough priority on hearing 

aid compatibility to meet these 

standards for at least one model. 

37. The Commission also allows a 

similar two-year transition period in 

other circumstances where an entity 

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that offers one or two handsets over an 

air interface becomes newly required to 

offer hearing aid-compatible handsets. 

The Commission recognizes that 

companies, and particularly 

manufacturers, that until now have not 

been required to offer hearing aidcompatible handsets will need a 

transition period to begin doing so. 

Accordingly, the new requirements will 

not become applicable to entities that 

are currently in the relevant business 

until two years after this Order is 

published in the Federal Register. 

Similarly, the Commission provides a 

two-year transition when a previously 

small business first exceeds the small 

business size standard. In addition, 

when hearing aid compatibility 

standards are newly adopted for an air 

interface or frequency band, 

manufacturers and service providers 

that offer one or two handset models 

over that air interface or frequency band 

will not be required to offer a hearing 

aid-compatible model until two years 

after rules adopting the technical 

standard are published in the Federal 

Register. While the Commission 

recognizes that manufacturers are 

typically aware of proposed standards 

well before they are adopted, the 

Commission is persuaded that 

businesses with small product lines, 

because they have less flexibility to 

work with multiple form factors and 

other design features, may need more 

time to introduce hearing aidcompatible products under these 

circumstances than the minimum of one 

year afforded to other manufacturers 

and service providers. The two-year 

transition period places companies in 

all of these circumstances on an equal 

footing with companies that are newly 

entering the market. 

38. GSM in the 1900 MHz band. In 

recognition of the special technical 

challenges of meeting hearing aid 

compatibility standards for handsets 

with certain desirable form factors 

operating over the legacy 2G GSM air 

interface in the 1900 MHz band, the 

Commission permits companies that 

would come under the amended de 

minimis rule but for their size to satisfy 

the hearing aid-compatible handset 

deployment requirement for GSM using 

a handset that allows the customer to 

reduce the maximum output power for 

GSM operations in the 1900 MHz band 

by up to 2.5 dB in order to meet the RF 

interference standard. 

39. The Commission finds that a 

special allowance to meet hearing aid 

compatibility standards for handsets 

operating over the 2G GSM network at 

1900 MHz, in the narrow context of 

companies that but for their size would 

be eligible for the amended de minimis 

exception, is in the public interest. 

Achieving hearing aid compatibility for 

GSM handsets in the 1900 MHz band 

implicates special technological 

challenges. The Commission has noted 

that ‘‘technological issues make it 

difficult to produce a wide variety of 

[GSM] handsets that both meet the M3 

standard for reduced RF interference for 

acoustic coupling and include certain 

popular features.’’ For example, based 

on the hearing aid compatibility status 

reports filed by handset manufacturers 

in July 2010 for the reporting period 

from July 1, 2009, to June 30, 2010, 121 

out of 122 handsets operating over the 

CDMA air interface, or 99%, were rated 

M3 or better, whereas only 82 of 153 

GSM handsets, or 54%, were rated M3 

or better. Certain technological choices 

in handset form and function, such as 

thin form factors and touch screens, 

increase the difficulty of meeting the 

ANSI standard for these handsets while 

bringing unique benefits to consumers. 

If the Commission were to apply hearing 

aid compatibility technical standards 

strictly to manufacturers that narrowly 

specialize in phones with these features, 

the Commission is concerned that such 

handsets might become unavailable to 

consumers with and without hearing 

loss alike. Alternatively, such 

manufacturers may choose to produce 

additional models with no unique 

features that are not demanded by the 

market simply to meet the new 

benchmarks that will apply to them two 

years following the release of this Order. 

A targeted approach that allows some 

flexibility in the hearing aid 

compatibility technical standards, to 

accommodate this narrow situation, will 

avoid these consequences and better 

promote access for people with hearing 

loss. 

40. The Commission further finds that 

allowing hearing aid-compatible phones 

to incorporate a limited user-controlled 

power reduction option under such 

circumstance is an appropriate means to 

address these concerns. A 2.5 dB 

reduction in power will have limited 

impact on the ability of people with 

hearing loss to use the affected phones. 

For one thing, any impact would be 

limited to those times when a handset 

is operating on GSM and at 1900 MHz. 

Furthermore, the diminution in power 

that occurs from a 2.5 dB loss should 

generally have an effect only when a 

handset is operated near the edge of 

reliable service coverage. Handsets 

usually operate at no more power than 

needed in order to prolong the battery 

charge and minimize potential 

interference, and they typically transmit 

at full power only to overcome signal 

fading in areas where there are 

obstructions or a large distance between 

the handset and the nearest base station. 

In addition, the modified rule applies 

only to 2G GSM technology, which is 

being phased out in favor of 3G 

alternatives. Also, as described by ANSI 

ASC C63TM, the new version of the 

ANSI C63.19 standard that is currently 

under consideration, because it will 

measure RF interference potential 

directly and eliminate the need for 

certain conservative assumptions, will 

make it approximately 2.2 dB easier for 

a GSM phone to achieve an M3 rating. 

The Commission expects that if the new 

standard is adopted, manufacturers will 

find it in their interest to abandon the 

power reduction if possible, or diminish 

it to the extent they can, in order to 

make their phones most attractive to 

people with hearing loss. 

41. The Commission recognizes, as 

certain parties have argued, that the 

Commission has previously disfavored 

reduction in output power as a means 

of meeting hearing aid compatibility 

requirements. Consistent with these 

prior holdings, the Commission affirms 

that the requirement to test for hearing 

aid compatibility at full power generally 

serves the important goal of ensuring 

that people with hearing loss have equal 

access to all of the service quality and 

performance that a given wireless phone 

provides. The Commission finds, 

however, in this narrow context, that 

the interest in fully equal access is 

outweighed by the importance of 

preserving the availability of a small 

category of phones that have desirable 

and beneficial features, and that will be 

made substantially accessible to people 

with hearing loss, from companies that 

specialize in producing only such 

phones. In the Further Notice of 

Proposed Rulemaking, issued together 

with this Second Report and Order, the 

Commission requests comment on 

whether to extend this exception to the 

full power testing requirement beyond 

companies that offer only one or two 

handset models. In addition, as 

proposed by HLAA, the Commission 

will monitor the impact of this rule and 

revisit the need for it in the future. In 

particular, in the event a new ANSI 

technical standard is adopted, the 

Commission will initiate a review of 

this rule shortly thereafter. 

42. Accordingly, subject to the 

conditions set forth below, the 

Commission amends its rules so that a 

company offering one or two handset 

models over the GSM air interface that 

would have been eligible for the 

amended de minimis exception rule but 

for its size may satisfy its obligation to 

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offer one hearing aid-compatible 

handset over the GSM air interface 

through a handset that lets the 

consumer reduce maximum transmit 

power for GSM operations in the 1900 

MHz band by up to 2.5 decibels and that 

then meets the ANSI criteria for an M3 

rating after such power reduction. The 

power reduction must affect only 2G 

GSM operations in the 1900 MHz band, 

and the phone’s default setting must be 

for full power operation. Once a handset 

meeting these criteria has been 

introduced in order to satisfy this 

hearing aid compatibility deployment 

requirement, the manufacturer or 

service provider may continue to count 

it as a hearing aid-compatible handset 

even if it increases its number of 

handset models operating over the GSM 

air interface beyond two. 

43. The Commission does find that 

two conditions on this rule are 

necessary in the public interest. First, 

through software or other programming, 

the Commission requires these handsets 

to operate at full transmit power when 

calling 911 on GSM at 1900 MHz. 

Although some parties have argued that 

powering the phone back up in this 

circumstance would raise consumer 

awareness and education issues, the 

Commission finds that the public 

interest is better served by maximizing 

the coverage for a 911 call even if some 

interference is experienced by 

consumers who use hearing aids. In 

addition, the Commission requires that 

consumers be adequately informed of 

the need to select the power reduction 

option to achieve hearing aid 

compatibility and of the consequences 

of doing so. Specifically, wherever a 

manufacturer or service provider 

provides the hearing aid compatibility 

rating for such a handset, it shall 

indicate that user activation of a special 

mode is necessary to meet the hearing 

aid compatibility standard. In addition, 

the handset manual or a product insert 

must explain how to activate the special 

mode and that doing so may result in a 

diminution of coverage. 

44. Other circumstances. In recent 

filings, Research in Motion Limited 

(RIM) has urged the Commission to 

retain a de minimis rule that would 

apply in situations where handsets are 

being phased out of production or retail 

sales portfolios. RIM states that ‘‘if a 

manufacturer or service provider is 

phasing out a particular air interface but 

still offers two or three handsets for a 

particular air interface, absent the 

current de minimis exception or a 

similar provision it would be compelled 

(regardless of carrier or consumer 

demand) to either discontinue all of the 

models concurrently with the HAC 

model, or maintain the HAC model 

solely for the purposes of enabling it to 

continue offering the non-HAC 

model(s).’’ RIM suggests a possible rule 

under which if a manufacturer or 

service provider offers four or more 

handsets over an air interface during a 

given calendar year, in the next calendar 

year offers three or fewer handsets, and 

in subsequent calendar years offers one 

or two of those remaining handsets, it 

would not need to offer any hearing aidcompatible handsets beginning in the 

third year. 

45. The Commission declines to take 

action on RIM’s proposal in the absence 

of a developed record or concrete 

evidence of a problem that needs to be 

addressed. While the scenario that RIM 

poses is plausible on its face, it provides 

no example of any instance where a 

manufacturer or service provider has 

actually used or will use the de minimis 

rule to manage its phasing out of a 

portfolio in which it previously offered 

hearing aid-compatible handsets. In the 

event a situation arises where retaining 

a hearing aid-compatible offering over 

an air interface that is being 

discontinued would cause hardship to a 

manufacturer or service provider, and 

discontinuing the handset would not 

unduly disadvantage people with 

hearing loss, the Commission would 

entertain a request for waiver. 

46. Review of the de minimis rule. 

Hearing Loss Association of America 

(HLAA) proposes that whatever actions 

the Commission takes, it should revisit 

any changes to the de minimis rule in 

a timely manner to see what impact they 

have in the real world. While the 

Commission believes the actions it takes 

today will best balance the interests of 

industry and consumers, it recognizes 

that these rules are complex and their 

consequences over time cannot be 

predicted with certainty. The 

Commission therefore will undertake a 

comprehensive review of the de 

minimis rule no later than 2015. 

C. New Distribution Channels 

47. Background. Under current rules, 

manufacturers are required to produce a 

certain number or percentage of handset 

models that meet the Commission’s 

hearing aid compatibility standards. 

These hearing aid compatibility 

deployment benchmarks for 

manufacturers, however, are codified in 

terms of the handsets that they offer to 

service providers. Thus, the rules apply 

only to handsets that manufacturers 

offer to service providers and that 

service providers then offer to 

consumers. If handsets are not offered to 

service providers, then the benchmarks 

in Section 20.19 do not apply. 

48. Discussion. Based on the record in 

this proceeding, the Commission 

updates our rules and amend Section 

20.19(c) and (d) to apply the 

deployment benchmarks to all handsets 

that a wireless handset manufacturer 

produces for distribution in the United 

States that are within the scope of 

Section 20.19(a) of the rule. This rule 

change will address new handset 

manufacturer distribution models in 

existing networks and ensure that 

wireless handsets will be covered by our 

hearing aid compatibility obligations 

regardless of distribution and sales 

channels. 

49. The Commission finds this rule 

change will serve the public interest as 

a better and more proactive approach to 

ensure the availability of hearing aidcompatible handsets in the developing 

handset marketplace. Whatever may 

have been the case in 2007, it is not now 

premature to apply hearing aid 

compatibility requirements to all 

distribution channels. To the contrary, a 

variety of phones is readily available to 

consumers through outlets ranging from 

online retailers to convenience stores to 

electronics specialty outlets, as well as 

directly from manufacturers. Indeed, 

Google recently experimented with 

selling its Nexus One handset only 

directly to consumers. While the 

Commission cannot predict how the 

market will develop, extending the 

scope of the manufacturer requirement 

to all handsets will ensure that wireless 

handsets are available to people with 

hearing loss regardless of distribution 

and sales channels. Moreover, no 

commenter has identified, and the 

Commission cannot conceive, any 

reason why meeting deployment 

benchmarks for hearing aid-compatible 

handsets might be more difficult or 

burdensome as a result of the method of 

distribution. 

50. The Commission recognizes that 

manufacturers may need time to meet 

the requirements of the changed rule. 

For example, a manufacturer that does 

not produce any handsets for sale 

through service providers is not 

currently required to offer any hearing 

aid-compatible handsets, and therefore 

may need to make technological 

adjustments to meet these requirements. 

Therefore, the Commission concludes 

that manufacturers will have until 12 

months from publication of the rule in 

the Federal Register to come into 

compliance with this new provision. 

This is the same as the minimum 

compliance period that our rules 

currently provide when the Commission 

adopts hearing aid compatibility 

standards for a new frequency band or 

air interface. 

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1See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601– 

612, has been amended by the Small Business 

Regulatory Enforcement Fairness Act of 1996 

(SBREFA), Public Law 104–121, Title II, 110 Stat. 

857 (1996). 

2Amendment of the Commission’s Rules 

Governing Hearing Aid-Compatible Mobile 

Handsets, WT Docket No. 07–250, Section 68.4(a) 

of the Commission’s Rules Governing Hearing Aid 

Compatible Telephones, WT Docket No. 01–309, 

Petition of American National Standards Institute 

Accredited Standards Committee C63 (EMC) ANSI 

ASC C63®, Notice of Proposed Rulemaking, 22 FCC 

Rcd 19760 (2007) (Notice). 

51. The Commission clarifies that 

handsets covered by this rule include 

handsets that manufacturers sell to 

businesses for distribution to their 

employees. For example, a business may 

distribute handsets to its employees that 

are intended primarily for internal 

communications or for data tracking, 

but that also incorporate external voice 

communications capability within the 

scope of Section 20.19(a). If the handset 

incorporates a built-in speaker and is 

typically held to the ear, then the 

manufacturer must count that handset 

in determining whether it meets the 

benchmarks for deploying hearing aidcompatible handsets. 

52. Finally, the Commission clarifies 

that the manufacturer of a phone is the 

party that produces it. The Commission 

expects to consider this issue further in 

the 2010 review. 

D. Volume Controls 

53. Background. In the Notice, the 

Commission urged all interested parties 

to specifically look into adding volume 

controls to wireless handsets. The 

Commission noted earlier statements by 

some in the deaf and hard of hearing 

community that one of hearing aid 

users’ most important concerns 

regarding wireless devices is the lack of 

adequate volume control on handsets. 

The Notice sought comment on whether 

any volume control requirements 

should be incorporated into our rules, 

and if so what they should be. 

54. Discussion. As several 

commenters have noted, the Alliance for 

Telecommunications Industry Solutions 

(ATIS) Incubator Solutions Program 

#4—Hearing Aid Compatibility (AISP.4– 

HAC) has formed a working group, 

denominated WG–11, to investigate the 

interaction of wireless handsets and 

digital hearing aids. The findings of this 

investigation, including 

recommendations for achieving 

adequate listening levels for consumers 

who wear hearing aids while using 

wireless phones, will be shared with the 

Commission upon the completion of 

this group’s efforts. As the Commission 

is awaiting input from the AISP.4–HAC 

working group, the Commission is 

taking no action in this Second Report 

and Order. The Commission will further 

consider this issue as part of the 2010 

review. 

E. Display Screens 

55. Background. The Notice noted 

that the Technology Access Program of 

Gallaudet University had pointed out 

that the display screens on smart 

phones emit electromagnetic energy that 

may interfere with the operation of 

hearing aids. It therefore invited 

comment on this issue, including 

whether any measures are appropriate 

to promote the deployment of phones 

that enable users to turn off their 

screens. 

56. Discussion. The Commission finds 

that the existing record does not 

establish a need for Commission action 

at this time. The Commission will seek 

further comment on this issue in the 

2010 review. 

V. Procedural Matters 

A. Final Regulatory Flexibility Analysis 

57. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA),1 the Federal Communications 

Commission (Commission) included an 

Initial Regulatory Flexibility Analysis 

(IRFA) of the possible significant 

economic impact on a substantial 

number of small entities of the policies 

and rules considered in the Notice in 

WT Docket No. 07–250.2 The 

Commission sought written public 

comment on the Notice in this docket, 

including comment on the IRFA. This 

Final Regulatory Flexibility Analysis 

(FRFA) conforms to the RFA. 

1. Need for, and Objectives of, the 

Proposed Rules 

58. In the Second Report and Order, 

the Commission makes several changes 

to its existing hearing aid compatibility 

requirements so that they will continue 

effectively to ensure in an evolving 

marketplace of new technologies and 

services that consumers with hearing 

loss are able to access wireless 

communications services through a 

wide selection of handsets without 

experiencing disabling interference or 

other technical obstacles. First, the 

Commission provides that multi-band 

and multi-mode handsets that meet 

hearing aid compatibility requirements 

over all air interfaces and frequency 

bands for which technical standards 

have been established, but that also 

accommodate voice operations for 

which standards do not exist, may be 

counted as hearing aid-compatible, 

provided consumers are informed that 

they have been tested for the operations 

for which there are not standards. This 

rule change extends to all such handsets 

the same regulatory regime that 

currently applies to handsets that 

incorporate Wi-Fi capability, and it 

ensures that consumers will have the 

information they need to best evaluate 

how a handset will operate with their 

hearing aids. In order to further ensure 

that consumers are provided with 

consistent and sufficient information, 

the Commission also prescribes specific 

language to be used in the disclosure. 

59. Second, the Commission refines 

the de minimis exception in its existing 

rule so that companies that are not small 

entities will be required to offer at least 

one hearing aid-compatible model after 

a two-year initial period. Manufacturers 

subject to this rule will also be required 

to offer at least one new model that is 

hearing aid-compatible for acoustic 

coupling every other calendar year. The 

Commission thereby helps ensure that 

people with hearing loss will have 

access to new and popular models, 

while continuing to protect the ability of 

small companies to compete and to 

foster innovation by new entrants. 

Further, in recognition of specific 

challenges that this rule change will 

impose for handsets operating over the 

legacy GSM air interface in the 1900 

MHz band, the Commission permits 

companies that will no longer qualify 

for the de minimis exception under this 

rule change to meet hearing aid 

compatibility requirements by installing 

software that enables customers to 

reduce the power output by a limited 

amount for such operations. 

60. Third, the Commission extends 

the hearing aid-compatible handset 

deployment requirements applicable to 

manufacturers to include handsets 

distributed by the manufacturer through 

channels other than service providers. 

This action ensures that consumers will 

continue to experience the benefits of 

hearing aid compatibility as innovative 

business plans give rise to a diversity of 

distribution channels. 

2. Summary of Significant Issues Raised 

by Public Comments in Response to the 

IRFA 

61. No comments specifically 

addressed the IRFA. Nonetheless, small 

entity issues raised in comments are 

addressed in this FRFA in Sections D 

and E. 

3. Description and Estimate of the 

Number of Small Entities to Which the 

Proposed Rules Would Apply 

62. The RFA directs agencies to 

provide a description of, and where 

feasible, an estimate of the number of 

small entities that may be affected by 

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3 5 U.S.C. 604(a)(3). 

4 5 U.S.C. 601(6). 

5 5 U.S.C. 601(3) (incorporating by reference the 

definition of ‘‘small business concern’’ in the Small 

Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. 

601(3), the statutory definition of a small business 

applies ‘‘unless an agency, after consultation with 

the Office of Advocacy of the Small Business 

Administration and after opportunity for public 

comment, establishes one or more definitions of 

such term which are appropriate to the activities of 

the agency and publishes such definition(s) in the 

Federal Register.’’ 

6 15 U.S.C. 632. 

7See SBA, Office of Advocacy, ‘‘Frequently Asked 

Questions,’’ http://web.sba.gov/faqs (last visited Jan. 

2009). 

8 13 CFR 121.201, North American Industry 

Classification System (NAICS) code 517210. 

9 Id. 

10U.S. Census Bureau, 2002 Economic Census, 

Subject Series: Information, ‘‘Establishment and 

Firm Size (Including Legal Form of Organization),’’ 

Table 5, NAICS code 517212 (issued Nov. 2005). 

11 Id. The census data do not provide a more 

precise estimate of the number of firms that have 

employment of 1,500 or fewer employees; the 

largest category provided is for firms with ‘‘1,000 

employees or more.’’ 12See Amendment of Parts 20 and 24 of the 

Commission’s Rules—Broadband PCS Competitive 

Bidding and the Commercial Mobile Radio Service 

Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 

7850–7852 paras. 57–60 (1996); see also 47 CFR 

24.720(b). 

13See Amendment of Parts 20 and 24 of the 

Commission’s Rules—Broadband PCS Competitive 

Bidding and the Commercial Mobile Radio Service 

Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 

7852 para. 60. 

14See Letter from Aida Alvarez, Administrator, 

Small Business Administration, to Amy Zoslov, 

Chief, Auctions and Industry Analysis Division, 

Wireless Telecommunications Bureau, Federal 

Communications Commission, dated December 2, 

1998. 

15FCC News, ‘‘Broadband PCS, D, E and F Block 

Auction Closes,’’ No. 71744 (rel. Jan. 14, 1997). 

16See ‘‘C, D, E, and F Block Broadband PCS 

Auction Closes,’’ public notice, 14 FCC Rcd 6688 

(WTB 1999). 

17See ‘‘C and F Block Broadband PCS Auction 

Closes; Winning Bidders Announced,’’ public 

notice, 16 FCC Rcd 2339 (2001). 

18See ‘‘Broadband PCS Spectrum Auction Closes; 

Winning Bidders Announced for Auction No. 58,’’ 

Public Notice, 20 FCC Rcd 3703 (2005). 

19See ‘‘Auction of Broadband PCS Spectrum 

License Closes; Winning Bidders Announced for 

Auction No. 71,’’ public notice, 22 FCC Rcd 9247 

(2007). 

20 Id. 

21See Auction of AWS–1 and Broadband PCS 

Licenses Rescheduled For August 13, 2008, Notice 

of Filing Requirements, Minimum Opening Bids, 

Upfront Payments and Other Procedures For 

Auction 78, public notice, 23 FCC Rcd 7496 (2008) 

(AWS–1 and Broadband PCS Procedures Public 

Notice). 

22 47 CFR 90.814(b)(1). 

23 Id. 

24See Letter from Aida Alvarez, Administrator, 

Small Business Administration, to Thomas Sugrue, 

Chief, Wireless Telecommunications Bureau, 

Federal Communications Commission, dated 

August 10, 1999. 

proposed rules, if adopted.3 The RFA 

generally defines the term ‘‘small entity’’ 

as having the same meaning as the terms 

‘‘small business,’’ ‘‘small organization,’’ 

and ‘‘small governmental jurisdiction.’’ 4

In addition, the term ‘‘small business’’ 

has the same meaning as the term ‘‘small 

business concern’’ under the Small 

Business Act.5 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’’).6

63. Small Businesses. Nationwide, 

there are a total of approximately 29.6 

million small businesses, according to 

the SBA.7

64. Cellular Licensees. The SBA has 

developed a small business size 

standard for small businesses in the 

category ‘‘Wireless Telecommunications 

Carriers (except satellite).’’ 8 Under that 

SBA category, a business is small if it 

has 1,500 or fewer employees.9 The 

census category of ‘‘Cellular and Other 

Wireless Telecommunications’’ is no 

longer used and has been superseded by 

the larger category ‘‘Wireless 

Telecommunications Carriers (except 

satellite)’’. However, since currently 

available data was gathered when 

‘‘Cellular and Other Wireless 

Telecommunications’’ was the relevant 

category, earlier Census Bureau data 

collected under the category of ‘‘Cellular 

and Other Wireless 

Telecommunications’’ will be used here. 

Census Bureau data for 2002 show that 

there were 1,397 firms in this category 

that operated for the entire year.10 Of 

this total, 1,378 firms had employment 

of 999 or fewer employees, and 19 firms 

had employment of 1,000 employees or 

more.11 Thus, under this category and 

size standard, the majority of firms can 

be considered small. 

65. Broadband Personal 

Communications Service. The 

broadband Personal Communications 

Service (PCS) spectrum is divided into 

six frequency blocks designated A 

through F, and the Commission has held 

auctions for each block. The 

Commission has created a small 

business size standard for Blocks C and 

F as an entity that has average gross 

revenues of less than $40 million in the 

three previous calendar years.12 For 

Block F, an additional small business 

size standard for ‘‘very small business’’ 

was added and is defined as an entity 

that, together with its affiliates, has 

average gross revenues of not more than 

$15 million for the preceding three 

calendar years.13 These small business 

size standards, in the context of 

broadband PCS auctions, have been 

approved by the SBA.14 No small 

businesses within the SBA-approved 

small business size standards bid 

successfully for licenses in Blocks A 

and B. There were 90 winning bidders 

that qualified as small entities in the C 

Block auctions. A total of 93 ‘‘small’’ and 

‘‘very small’’ business bidders won 

approximately 40 percent of the 1,479 

licenses for Blocks D, E, and F.15 On 

March 23, 1999, the Commission 

reauctioned 155 C, D, E, and F Block 

licenses; there were 113 small business 

winning bidders.16

66. On January 26, 2001, the 

Commission completed the auction of 

422 C and F Block PCS licenses in 

Auction 35.17 Of the 35 winning bidders 

in this auction, 29 qualified as ‘‘small’’ 

or ‘‘very small’’ businesses. Subsequent 

events concerning Auction 35, 

including judicial and agency 

determinations, resulted in a total of 163 

C and F Block licenses being available 

for grant. In 2005, the Commission 

completed an auction of 188 C block 

licenses and 21 F block licenses in 

Auction 58. There were 24 winning 

bidders for 217 licenses.18 Of the 24 

winning bidders, 16 claimed small 

business status and won 156 licenses. In 

2007, the Commission completed an 

auction of 33 licenses in the A, C, and 

F Blocks in Auction 71.19 Of the 14 

winning bidders, six were designated 

entities.20 In 2008, the Commission 

completed an auction of 20 Broadband 

PCS licenses in the C, D, E and F Block 

licenses in Auction 78.21

67. Specialized Mobile Radio. The 

Commission awards ‘‘small entity’’ 

bidding credits in auctions for 

Specialized Mobile Radio (SMR) 

geographic area licenses in the 800 MHz 

and 900 MHz bands to firms that had 

revenues of no more than $15 million in 

each of the three previous calendar 

years.22 The Commission awards ‘‘very 

small entity’’ bidding credits to firms 

that had revenues of no more than $3 

million in each of the three previous 

calendar years.23 The SBA has approved 

these small business size standards for 

the 900 MHz Service.24 The 

Commission has held auctions for 

geographic area licenses in the 800 MHz 

and 900 MHz bands. The 900 MHz SMR 

auction began on December 5, 1995, and 

closed on April 15, 1996. Sixty bidders 

claiming that they qualified as small 

businesses under the $15 million size 

standard won 263 geographic area 

licenses in the 900 MHz SMR band. The 

800 MHz SMR auction for the upper 200 

channels began on October 28, 1997, 

and was completed on December 8, 

1997. Ten bidders claiming that they 

qualified as small businesses under the 

$15 million size standard won 38 

geographic area licenses for the upper 

200 channels in the 800 MHz SMR 

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54518 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Rules and Regulations 

25See ‘‘Correction to public notice DA 96–586 

‘FCC Announces Winning Bidders in the Auction 

of 1,020 Licenses to Provide 900 MHz SMR in Major 

Trading Areas,’ ’’ Public Notice, 18 FCC Rcd 18367 

(WTB 1996). 

26See ‘‘Multi-Radio Service Auction Closes,’’ 

public notice, 17 FCC Rcd 1446 (WTB 2002). 

27See AWS–1 and Broadband PCS Procedures 

Public Notice, 23 FCC Rcd 7496. Auction 78 also 

included an auction of Broadband PCS licenses. 

28 Id. at 7521–22. 

29See ‘‘Auction of AWS–1 and Broadband PCS 

Licenses Closes, Winning Bidders Announced for 

Auction 78, Down Payments Due September 9, 

2008, FCC Forms 601 and 602 Due September 9, 

2008, Final Payments Due September 23, 2008, TenDay Petition to Deny Period’’, public notice, 23 FCC 

Rcd 12749 (2008). 

30The service is defined in Section 22.99 of the 

Commission’s rules, 47 CFR 22.99. 

31BETRS is defined in Sections 22.757 and 

22.759 of the Commission’s rules, 47 CFR 22.757 

and 22.759. 

32 13 CFR 121.201, NAICS code 517210. 

33Amendment of the Commission’s Rules to 

Establish Part 27, the Wireless Communications 

Service (WCS), Report and Order, 12 FCC Rcd 

10785, 10879 para. 194 (1997). 

34See Letter from Aida Alvarez, Administrator, 

Small Business Administration, to Amy Zoslov, 

Chief, Auctions and Industry Analysis Division, 

Wireless Telecommunications Bureau, Federal 

Communications Commission, dated December 2, 

1998. 

35This service is governed by subpart I of part 22 

of the Commission’s rules. See 47 CFR 22.1001– 

22.1037. 

36 13 CFR 121.201, NAICS code 517210. 

37 Id. 

38See 47 CFR part 21, subpart K; Amendment of 

Parts 1, 21, 73, 74 and 101 of the Commission’s 

rules to Facilitate the Provision of Fixed and Mobile 

Broadband Access, Educational and Other 

Advanced Services in the 2150–2162 and 2500– 

2690 MHz Bands; Part 1 of the Commission’s 

Rules—Further Competitive Bidding Procedures; 

Amendment of Parts 21 and 74 to Enable 

Multipoint Distribution Service and the 

Instructional Television Fixed Service Amendment 

of Parts 21 and 74 to Engage in Fixed Two-Way 

Transmissions; Amendment of Parts 21 and 74 of 

the Commission’s Rules With Regard to Licensing 

in the Multipoint Distribution Service and in the 

Instructional Television Fixed Service for the Gulf 

of Mexico, 19 FCC Rcd 14165 (2004). 

39See 47 CFR Part 74, subpart I; MDS/ITFS Order, 

19 FCC Rcd 14165 (2004). 

band.25 A second auction for the 800 

MHz band was held on January 10, 2002 

and closed on January 17, 2002 and 

included 23 licenses. One bidder 

claiming small business status won five 

licenses.26

68. The auction of the 1,053 800 MHz 

SMR geographic area licenses for the 

General Category channels began on 

August 16, 2000, and was completed on 

September 1, 2000. Eleven bidders that 

won 108 geographic area licenses for the 

General Category channels in the 800 

MHz SMR band qualified as small 

businesses under the $15 million size 

standard. In an auction completed on 

December 5, 2000, a total of 2,800 

Economic Area licenses in the lower 80 

channels of the 800 MHz SMR service 

were sold. Of the 22 winning bidders, 

19 claimed ‘‘small business’’ status and 

won 129 licenses. Thus, combining all 

three auctions, 40 winning bidders for 

geographic licenses in the 800 MHz 

SMR band claimed status as small 

business. 

69. In addition, there are numerous 

incumbent site-by-site SMR licensees 

and licensees with extended 

implementation authorizations in the 

800 and 900 MHz bands. The 

Commission does not know how many 

firms provide 800 MHz or 900 MHz 

geographic area SMR services pursuant 

to extended implementation 

authorizations, nor how many of these 

providers have annual revenues of no 

more than $15 million. One firm has 

over $15 million in revenues. In 

addition, the Commission does not 

know how many of these firms have 

1,500 or fewer employees. The 

Commission assumes, for purposes of 

this analysis, that all of the remaining 

existing extended implementation 

authorizations are held by small 

entities. 

70. Advanced Wireless Services. In 

2008, the Commission conducted the 

auction of Advanced Wireless Services 

(‘‘AWS’’) licenses.27 This auction, which 

was designated as Auction 78, offered 

35 licenses in the AWS 1710–1755 MHz 

and 2110–2155 MHz bands (‘‘AWS–1’’). 

The AWS–1 licenses were licenses for 

which there were no winning bids in 

Auction 66. That same year, the 

Commission completed Auction 78. A 

bidder with attributed average annual 

gross revenues that exceeded $15 

million and did not exceed $40 million 

for the preceding three years (‘‘small 

business’’) received a 15 percent 

discount on its winning bid. A bidder 

with attributed average annual gross 

revenues that did not exceed $15 

million for the preceding three years 

(‘‘very small business’’) received a 25 

percent discount on its winning bid. A 

bidder that had a combined total assets 

of less than $500 million and combined 

gross revenues of less than $125 million 

in each of the last two years qualified 

for entrepreneur status.28 Four winning 

bidders that identified themselves as 

very small businesses won 17 

licenses.29 Three of the winning bidders 

that identified themselves as small 

business won five licenses. 

Additionally, one other winning bidder 

that qualified for entrepreneur status 

won 2 licenses. 

71. Rural Radiotelephone Service. The 

Commission has not adopted a size 

standard for small businesses specific to 

the Rural Radiotelephone Service.30 A 

significant subset of the Rural 

Radiotelephone Service is the Basic 

Exchange Telephone Radio System 

(‘‘BETRS’’).31 In the present context, the 

Commission will use the SBA small 

business size standard applicable to 

Wireless Telecommunication Carriers 

(except satellite), i.e., an entity 

employing no more than 1,500 

persons.32 There are approximately 

1,000 licensees in the Rural 

Radiotelephone Service, and the 

Commission estimates that there are 

1,000 or fewer small entity licensees in 

the Rural Radiotelephone Service that 

may be affected by the rules and 

policies adopted herein. 

72. Wireless Communications 

Services. This service can be used for 

fixed, mobile, radiolocation, and digital 

audio broadcasting satellite uses in the 

2305–2320 MHz and 2345–2360 MHz 

bands. The Commission defined ‘‘small 

business’’ for the wireless 

communications services (WCS) auction 

as an entity with average gross revenues 

of $40 million or less for each of the 

three preceding years, and a ‘‘very small 

business’’ as an entity with average gross 

revenues of $15 million or less for each 

of the three preceding years.33 The SBA 

has approved these definitions.34 The 

Commission auctioned geographic area 

licenses in the WCS service. In the 

auction, which commenced on April 15, 

1997 and closed on April 25, 1997, there 

were seven bidders that won 31 licenses 

that qualified as very small business 

entities, and one bidder that won one 

license that qualified as a small business 

entity. 

73. Offshore Radiotelephone Service. 

This service operates on several UHF 

television broadcast channels that are 

not used for television broadcasting in 

the coastal areas of States bordering the 

Gulf of Mexico.35 There is presently one 

licensee in this service. The 

Commission does not have information 

whether that licensee would qualify as 

small under the SBA’s small business 

size standard for Wireless 

Telecommunications Carriers (except 

Satellite) services.36 Under the SBA 

small business size standard, a business 

is small if it has 1,500 or fewer 

employees.37

74. Broadband Radio Service and 

Educational Broadband Service. The 

Broadband Radio Service (‘‘BRS’’), 

formerly known as the Multipoint 

Distribution Service (‘‘MDS’’),38 and the 

Educational Broadband Service (‘‘EBS’’), 

formerly known as the Instructional 

Television Fixed Service (‘‘ITFS’’),39 use 

2 GHz band frequencies to transmit 

video programming and provide 

broadband services to residential 

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40See Annual Assessment of the Status of 

Competition in the Market for the Delivery of Video 

Programming, Eleventh Annual Report, 20 FCC Rcd 

2507, 2565 para. 131 (2006). 

41 Id. 

42 13 CFR 121.201, NAICS code 515210. 

43 13 CFR 121.201, NAICS code 517210. 

44MDS Auction No. 6 began on November 13, 

1995, and closed on March 28, 1996. (67 bidders 

won 493 licenses.) 

45 47 CFR 21.961(b)(1). 

46See Amendment of Parts 21 and 74 of the 

Commission’s Rules with Regard to Filing 

Procedures in the Multipoint Distribution Service 

and in the Instructional Television Fixed Service 

and Implementation of Section 309(j) of the 

Communications Act—Competitive Bidding, Docket 

No. 94–131, Report and Order, 10 FCC Rcd 9589 

(1995). 

47Hundreds of stations were licensed to 

incumbent MDS licensees prior to implementation 

of Section 309(j) of the Communications Act of 

1934, 47 U.S.C. 309(j). For these pre-auction 

licenses, the applicable standard is SBA’s small 

business size standard for ‘‘Cable and Other 

Program Distribution’’ (annual receipts of $13.5 

million or less). See 13 CFR 121.201, NAICS code 

515210. 

48 In addition, the term ‘‘small entity’’ under 

SBREFA applies to small organizations (nonprofits) 

and to small governmental jurisdictions (cities, 

counties, towns, townships, villages, school 

districts, and special districts with populations of 

less than 50,000). 5 U.S.C. 601(4)–(6). The 

Commission does not collect annual revenue data 

on EBS licensees. 

49See Amendments to Parts 1, 2, 27 and 90 of the 

Commission’s Rules to License Services in the 216– 

220 MHz, 1390–1395 MHz, 1427–1429 MHz, 1429– 

1432 MHz, 1432–1435 MHz, 1670–1675 MHz, and 

2385–2390 MHz Government Transfer Bands, 17 

FCC Rcd 9980 (2002) (Government Transfer Bands 

Service Rules Report and Order). 

50See Reallocation of the 216–220 MHz, 1390– 

1395 MHz, 1427–1429 MHz, 1429–1432 MHz, 

1432–1435 MHz, 1670–1675 MHz, and 2385–2390 

MHz Government Transfer Bands, WT Docket No. 

02–8, Notice of Proposed Rulemaking, 17 FCC Rcd 

2500, 2550–51 paras. 144–146 (2002). To be 

consistent with the size standard of ‘‘very small 

business’’ proposed for the 1427–1432 MHz band 

for those entities with average gross revenues for 

the three preceding years not exceeding $3 million, 

the Service Rules Notice proposed to use the terms 

‘‘entrepreneur’’ and ‘‘small business’’ to define 

entities with average gross revenues for the three 

preceding years not exceeding $40 million and $15 

million, respectively. Because the Commission is 

not adopting small business size standards for the 

1427–1432 MHz band, it instead uses the terms 

‘‘small business’’ and ‘‘very small business’’ to define 

entities with average gross revenues for the three 

preceding years not exceeding $40 million and $15 

million, respectively. 

51See Letter from Hector V. Barreto, 

Administrator, Small Business Administration, to 

Margaret W. Wiener, Chief, Auctions and Industry 

Analysis Division, Wireless Telecommunications 

Bureau, Federal Communications Commission, 

dated Jan. 18, 2002. 

52Such bidding credits are codified for the 

unpaired 1390–1392 MHz, paired 1392–1395 MHz, 

and the paired 1432–1435 MHz bands in 47 CFR 

27.807. Such bidding credits are codified for the 

unpaired 1670–1675 MHz band in 47 CFR 27.906. 

53 In the Part 1 Third Report and Order, the 

Commission adopted a standard schedule of 

bidding credits, the levels of which were developed 

based on its auction experience. Part 1 Third Report 

and Order, 13 FCC Rcd at 403–04 para. 47; see also 

47 CFR 1.2110(f)(2). 

54See Service Rules Notice, 17 FCC Rcd at 2550– 

51 para. 145. 

55See, e.g., Revision of Part 22 and Part 90 of the 

Commission’s Rules to Facilitate Future 

Development of Paging Systems; Implementation of 

Section 309(j) of the Communications Act— 

Competitive Bidding, WT Docket No. 96–18, PR 

Docket No. 93–253, Memorandum Opinion and 

Order on Reconsideration and Third Report and 

Order, 14 FCC Rcd 10030, 10091 para. 112 (1999). 

subscribers.40 These services, 

collectively referred to as ‘‘wireless 

cable,’’ were originally designed for the 

delivery of multichannel video 

programming, similar to that of 

traditional cable systems, but over the 

past several years licensees have 

focused their operations instead on 

providing two-way high-speed Internet 

access services.41 The Commission 

estimates that the number of wireless 

cable subscribers is approximately 

100,000, as of March 2005. The SBA 

small business size standard for the 

broad census category of Cable and 

Other Program Distribution, which 

consists of such entities generating 

$13.5 million or less in annual receipts, 

appears applicable to MDS and ITFS.42

Note that the census category of ‘‘Cable 

and Other Program Distribution’’ is no 

longer used and has been superseded by 

the larger category ‘‘Wireless 

Telecommunications Carriers’’ (except 

satellite). This category provides that a 

small business is a wireless company 

employing no more than 1,500 

persons.43 However, since currently 

available data was gathered when ‘‘Cable 

and Other Program Distribution’’ was 

the relevant category, earlier Census 

Bureau data collected under the 

category of ‘‘Cable and Other Program 

Distribution’’ will be used here. Other 

standards also apply, as described. 

75. The Commission has defined 

small MDS (now BRS) entities in the 

context of Commission license auctions. 

In the 1996 MDS auction,44 the 

Commission defined a small business as 

an entity that had annual average gross 

revenues of less than $40 million in the 

previous three calendar years.45 This 

definition of a small entity in the 

context of MDS auctions has been 

approved by the SBA.46 In the MDS 

auction, 67 bidders won 493 licenses. Of 

the 67 auction winners, 61 claimed 

status as a small business. At this time, 

the Commission estimates that of the 61 

small business MDS auction winners, 48 

remain small business licensees. In 

addition to the 48 small businesses that 

hold BTA authorizations, there are 

hundreds of MDS licensees and wireless 

cable operators that did not receive their 

licenses as a result of the MDS auction 

and that fall under the former SBA 

small business size standard for Cable 

and Other Program Distribution.47

Information available to the 

Commission indicates that there are 

approximately 850 of these licensees 

and operators that do not generate 

revenue in excess of $13.5 million 

annually. Therefore, the Commission 

estimates that there are approximately 

850 of these small entity MDS (or BRS) 

providers, as defined by the SBA and 

the Commission’s auction rules. 

76. Educational institutions are 

included in this analysis as small 

entities; however, the Commission has 

not created a specific small business 

size standard for ITFS (now EBS).48 The 

Commission estimates that there are 

currently 2,452 EBS licenses, held by 

1,524 EBS licensees, and all but 100 of 

the licenses are held by educational 

institutions. Thus, the Commission 

estimates that at least 1,424 EBS 

licensees are small entities. 

77. Government Transfer Bands. The 

Commission adopted small business 

size standards for the unpaired 1390– 

1392 MHz, 1670–1675 MHz, and the 

paired 1392–1395 MHz and 1432–1435 

MHz bands.49 Specifically, with respect 

to these bands, the Commission defined 

an entity with average annual gross 

revenues for the three preceding years 

not exceeding $40 million as a ‘‘small 

business,’’ and an entity with average 

annual gross revenues for the three 

preceding years not exceeding $15 

million as a ‘‘very small business.’’ 50

SBA has approved these small business 

size standards for the aforementioned 

bands.51 Correspondingly, the 

Commission adopted a bidding credit of 

15 percent for ‘‘small businesses’’ and a 

bidding credit of 25 percent for ‘‘very 

small businesses.’’ 52 This bidding credit 

structure was found to have been 

consistent with the Commission’s 

schedule of bidding credits, which may 

be found at Section 1.2110(f)(2) of the 

Commission’s rules.53 The Commission 

found that these two definitions will 

provide a variety of businesses seeking 

to provide a variety of services with 

opportunities to participate in the 

auction of licenses for this spectrum and 

will afford such licensees, who may 

have varying capital costs, substantial 

flexibility for the provision of 

services.54 The Commission noted that 

it had long recognized that bidding 

preferences for qualifying bidders 

provide such bidders with an 

opportunity to compete successfully 

against large, well-financed entities.55

The Commission also noted that it had 

found that the use of tiered or graduated 

small business definitions is useful in 

furthering its mandate under Section 

309(j) to promote opportunities for and 

disseminate licenses to a wide variety of 

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54520 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Rules and Regulations 

56 47 U.S.C. 309(j)(3)(B), (4)(C)–(D). The 

Commission will also not adopt special preferences 

for entities owned by minorities or women, and 

rural telephone companies. The Commission did 

not receive any comments on this issue, and it does 

not have an adequate record to support such special 

provisions under the current standards of judicial 

review. See Adarand Constructors v. Pen ̃ a, 515 U.S. 

200 (1995) (requiring a strict scrutiny standard of 

review for government mandated race-conscious 

measures); United States v. Virginia, 518 U.S. 515 

(1996) (applying an intermediate standard of review 

to a State program based on gender classification). 

57 13 CFR 121.201, NAICS code 334220. 

applicants.56 An auction for one license 

in the 1670–1674 MHz band 

commenced on April 30, 2003 and 

closed the same day. One license was 

awarded. The winning bidder was not a 

small entity. 

78. Radio and Television 

Broadcasting and Wireless 

Communications Equipment 

Manufacturing. The Census Bureau 

defines this category as follows: ‘‘This 

industry comprises establishments 

primarily engaged in manufacturing 

radio and television broadcast and 

wireless communications equipment. 

Examples of products made by these 

establishments are: Transmitting and 

receiving antennas, cable television 

equipment, GPS equipment, pagers, 

cellular phones, mobile 

communications equipment, and radio 

and television studio and broadcasting 

equipment.’’ The SBA has developed a 

small business size standard for firms in 

this category, which is: All such firms 

having 750 or fewer employees. 57

According to Census Bureau data for 

2002, there were a total of 1,041 

establishments in this category that 

operated for the entire year. Of this 

total, 1,010 had employment of less than 

500, and an additional 13 had 

employment of 500 to 999. Thus, under 

this size standard, the majority of firms 

can be considered small. 

4. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements for Small Entities 

79. The Commission adopts several 

reporting, recordkeeping, and other 

compliance requirements which could 

affect small entities. First, as an interim 

measure, the Commission extends to all 

handsets that incorporate new 

frequency bands and air interfaces 

usable for voice services other than WiFi the same counting and disclosure 

rules that currently apply to handsets 

with Wi-Fi. In other words, a handset 

that meets hearing aid compatibility 

requirements over all air interfaces and 

frequency bands for which technical 

standards have been established, but 

that also accommodates voice 

operations for which standards do not 

exist, may be counted as hearing aidcompatible provided consumers are 

clearly informed that it has not been 

tested for the operations for which there 

are not standards. 

80. The Commission further requires 

that for newly manufactured handsets 

covered by this rule, the following 

disclosure language be used: ‘‘This 

phone has been tested and rated for use 

with hearing aids for some of the 

wireless technologies that it uses. 

However, there may be some newer 

wireless technologies used in this phone 

that have not been tested yet for use 

with hearing aids. It is important to try 

the different features of this phone 

thoroughly and in different locations, 

using your hearing aid or cochlear 

implant, to determine if you hear any 

interfering noise. Consult your service 

provider or phone retailer about its 

return and exchange policies. Consult 

your service provider or the 

manufacturer of this phone for 

information on hearing aid 

compatibility. If you have questions 

about return or exchange policies, 

consult your service provider or phone 

retailer.’’ The Commission concludes 

that a uniform text will ensure that 

consumers are provided with consistent 

and sufficient information. However, 

handsets that are already on the market 

with other disclosure language that 

complies with the current rule will not 

be required to replace this with the 

newly prescribed language. This 

disclosure rule will apply to all 

handsets that operate in part over an air 

interface or frequency band that is not 

covered by the current hearing aid 

compatibility technical standard until 

the date that rules adopting any new 

standard become effective. 

81. In order to ensure that consumers 

who use hearing aids and cochlear 

implants have access to a variety of 

phones, while preserving competitive 

opportunities for small companies as 

well as opportunities for innovation and 

investment, the Commission modifies 

the de minimis rule as applied to 

companies that are not small entities. 

Specifically, the Commission decides 

that beginning two years after it offers 

its first handset model over an air 

interface, a manufacturer or service 

provider that is not a small entity must 

offer at least one model that is rated M3 

or higher and at least one model that is 

rated T3 or higher if it offers between 

one and three total handset models. 

Consistent with the SBA size standards, 

a ‘‘small entity’’ is defined as a service 

provider that, together with its parent, 

subsidiary, or affiliate companies under 

common ownership or control, has 1500 

or fewer employees or a manufacturer 

that, together with its parent, subsidiary, 

or affiliate companies under common 

ownership or control, has 750 or fewer 

employees. In order to maintain parity 

and to allow entities that have been 

relying on the de minimis rule a 

reasonable period for transition, this 

obligation will become effective for 

manufacturers and service providers 

that offer one or two handset models 

over an air interface two years after the 

latest of the following: The date the 

manufacturer or service provider began 

offering handsets over the air interface, 

the date the amended rule is published 

in the Federal Register, the date a 

hearing aid compatibility technical 

standard is adopted for the relevant 

operation, or the date a previously small 

entity no longer meets our small entity 

definition. The Commission also revises 

the ‘‘refresh’’ rule to require 

manufacturers that are not small entities 

that offer two models over an air 

interface, after the first two years, to 

introduce at least one new model rated 

M3 or higher every other year. 

82. In recognition of the special 

technical challenges of meeting hearing 

aid compatibility technical standards for 

handsets with certain desirable form 

factors operating over the legacy 2G 

GSM air interface in the 1900 MHz 

band, the Commission permits 

companies that would come under the 

amended de minimis rule but for their 

size to satisfy the hearing aidcompatible handset deployment 

requirement for GSM using a handset 

that allows the customer to reduce the 

maximum output power for GSM 

operations in the 1900 MHz band by up 

to 2.5 decibels, except for emergency 

calls to 911, in order to meet the 

standard for radio frequency 

interference reduction. Wherever a 

manufacturer or service provider 

provides the hearing aid compatibility 

rating for such a handset, it shall 

indicate that user activation of a special 

mode is necessary to meet the hearing 

aid compatibility standard. In addition, 

the handset manual or product insert 

must explain how to activate the special 

mode and that doing so may result in a 

diminution of coverage. These actions 

are taken to ensure that consumers who 

use hearing aids and cochlear implants 

have access to a variety of phones and 

are adequately informed about the 

functionality and the limitations of the 

handsets, while preserving competitive 

opportunities for small companies as 

well as opportunities for innovation and 

investment. 

83. Currently, wireless handsets are 

increasingly distributed through 

channels other than service providers. 

The Commission therefore amends 

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Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Rules and Regulations 54521 

58 5 U.S.C. 603(c). 

Section 20.19(c) and (d) to apply the 

hearing aid-compatible handset 

deployment benchmarks to all handsets 

that a wireless handset manufacturer 

produces for distribution in the United 

States that are within the scope of 

Section 20.19(a) of the rule. 

Manufacturers will have until 12 

months from publication of the rule in 

the Federal Register to come into 

compliance with it. The Commission 

clarifies that handsets covered by this 

rule include handsets that 

manufacturers sell to businesses for 

distribution to their employees. This 

rule change will address new handset 

manufacturer distribution models in 

existing networks and ensure that 

wireless handsets will be covered by the 

Commission’s hearing aid compatibility 

obligations regardless of distribution 

and sales channels. The Commission 

finds that this rule change will serve the 

public interest as a better and more 

proactive approach to ensure the 

availability of hearing aid-compatible 

handsets in the developing handset 

marketplace. 

5. Steps Proposed To Minimize 

Significant Economic Impact on Small 

Entities, and Significant Alternatives 

Considered 

84. The RFA requires an agency to 

describe in the IRFA any significant 

alternatives that it has considered in 

reaching its proposed approach, which 

may include (among others) the 

following four alternatives: (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.58 The Commission 

considered these alternatives with 

respect to all of the requirements that it 

is imposing on small entities in the 

Second Report and Order, and this 

FRFA incorporates by reference all 

discussion in the Second Report and 

Order that considers the impact on 

small entities of the rules adopted by 

the Commission. In addition, the 

Commission’s consideration of those 

issues as to which the impact on small 

entities was specifically discussed in 

the record is summarized below: 

85. Until such time as any revision of 

the hearing aid compatibility technical 

standard may be adopted by the 

Commission, the Commission extends 

to all handsets that incorporate 

frequency bands and air interfaces other 

than Wi-Fi usable for voice services for 

which no hearing aid compatibility 

standards exist the same counting and 

disclosure rules that currently apply to 

handsets with Wi-Fi capability. The 

disclosure requirement is necessary in 

order to count these handsets as hearing 

aid-compatible without misleading 

consumers, and therefore no exception 

is appropriate for small entities. The 

Commission further prescribes uniform 

disclosure language to ensure that 

consumers are provided with consistent 

and sufficient information. This uniform 

language will also streamline and 

simplify the disclosure process, thereby 

easing the burden on regulated entities. 

However, handsets that are already on 

the market bearing another label that 

complies with the current rule will not 

be required to replace this label with the 

newly prescribed language. This 

transitional exception will ease the 

regulatory burden on small service 

providers that may have a slower 

turnover of their inventory. 

86. The Commission modifies the de 

minimis rule as applied to companies 

that are not small entities. Specifically, 

the Commission decides that beginning 

two years after it offers its first handset 

model over an air interface, a 

manufacturer or service provider that is 

not a small entity, as defined herein, 

must offer at least one model that is 

rated M3 or higher and at least one 

model that is rated T3 or higher if it 

offers between one and three total 

handset models. The Commission also 

revises the ‘‘refresh’’ rule to require 

manufacturers that are not small entities 

that offer two models over an air 

interface, after the first two years, to 

introduce at least one new model rated 

M3 or higher every other year. 

Consistent with the SBA size standards, 

a ‘‘small entity’’ is defined as a service 

provider that, together with its parent, 

subsidiary, or affiliate companies under 

common ownership or control, has 1500 

or fewer employees or a manufacturer 

that, together with its parent, subsidiary, 

or affiliate companies under common 

ownership or control, has 750 or fewer 

employees. In order to minimize the 

economic impact on small 

manufacturers and service providers 

and preserve their opportunity to 

compete in the market and innovate, the 

existing de minimis rule will continue 

to apply to small entities. In addition, in 

order to ease the burden of transition, 

the new rule will become applicable to 

a manufacturer or service provider two 

years after the latest of: The date the 

manufacturer or service provider began 

offering handsets over the air interface, 

the date the amended rule is published 

in the Federal Register, the date a 

hearing aid compatibility technical 

standard is adopted for the relevant 

operation, or the date a previously small 

entity no longer meets our small entity 

definition. 

87. In recognition of the special 

technical challenges of meeting hearing 

aid compatibility technical standards for 

handsets with certain desirable form 

factors operating over the legacy 2G 

GSM air interface in the 1900 MHz 

band, the Commission permits 

companies that would come under the 

amended de minimis rule but for their 

size to satisfy the hearing aidcompatible handset deployment 

requirement for GSM using a handset 

that allows the customer, except for 

emergency calls to 911, to reduce the 

maximum output power for GSM 

operations in the 1900 MHz band in 

order to meet the RF interference 

standard. However, wherever a 

manufacturer or service provider 

provides the hearing aid compatibility 

rating for such a handset, it shall 

indicate that user activation of a special 

mode is necessary to meet the hearing 

aid compatibility standard. In addition, 

the handset manual or product insert 

must explain how to activate the special 

mode and that doing so may result in a 

diminution of coverage. These actions 

will reduce the regulatory burden on 

small businesses that do not come under 

the de minimis rule by making it easier 

to satisfy hearing aid compatibility 

requirements for this class of handsets, 

while ensuring that consumers who use 

hearing aids and cochlear implants have 

access to a variety of phones and are 

adequately informed about the 

functionality and the limitations of their 

handsets. 

88. The Commission amends Section 

20.19 to expand its scope for 

manufacturers such that the rule will 

apply to all covered handsets that they 

manufacture for sale and use in the 

United States, regardless of whether 

those handsets are offered to service 

providers, intermediaries, businesses for 

use by their employees, or directly to 

the public. Manufacturers will have 

until 12 months from publication of the 

rule in the Federal Register to come into 

compliance with it. The Commission 

finds that this rule change will serve the 

public interest as a better and more 

proactive approach to ensure the 

availability of hearing aid-compatible 

handsets in the developing handset 

marketplace, and that no exception to or 

modification of the rule for small 

entities is appropriate consistent with 

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54522 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Rules and Regulations 

59See 5 U.S.C. 801(a)(1)(A). 

60See 5 U.S.C. 604(b). 

the rule’s purpose. The 12-month 

transition period will ease the burden of 

coming into compliance for small 

entities. 

6. Report to Congress 

89. The Commission will send a copy 

of the Second Report and Order, 

including this FRFA, in a report to be 

sent to Congress and the Government 

Accountability Office pursuant to the 

Congressional Review Act.59 In 

addition, the Commission will send a 

copy of the Second Report and Order, 

including this FRFA, to the Chief 

Counsel for Advocacy of the SBA. A 

copy of the Second Report and Order 

and FRFA (or summaries thereof) will 

also be published in the Federal 

Register.60

B. Final Paperwork Reduction Act 

Analysis 

90. The Second Report and Order 

contains modified information 

collection requirements subject to the 

Paperwork Reduction Act of 1995 

(PRA), Public Law 104–13. It will be 

submitted to the Office of Management 

and Budget (OMB) for review under 

Section 3507(d) of the PRA. OMB, the 

general public, and other Federal 

agencies are invited to comment on the 

modified information collection 

requirements contained in this 

proceeding. In addition, pursuant to the 

Small Business Paperwork Relief Act of 

2002, Public Law 107–198, see 44 U.S.C. 

3506(c)(4), the Commission sought 

specific comment on how the 

Commission might further reduce the 

information collection burden for small 

business concerns with fewer than 25 

employees. 

91. In this present document, the 

Commission has assessed the effects of 

extending to all handsets that 

incorporate new frequency bands and 

air interfaces for which hearing aid 

compatibility technical standards do not 

yet exist the same counting and 

disclosure rules that currently apply to 

handsets with Wi-Fi capability, as well 

as the disclosure requirements 

associated with modifying the hearing 

aid compatibility technical standards for 

manufacturers and service providers 

that offer one or two handsets operating 

over the legacy 2G GSM air interface in 

the 1900 MHz band. The Commission 

finds that these disclosure requirements 

are necessary to ensure that consumers 

are adequately informed of the 

underlying measures that, taken as a 

whole, will increase the availability of 

innovative handsets and reduce the 

burden of complying with the hearing 

aid compatibility requirements for 

entities including small businesses. 

C. Congressional Review Act 

92. The Commission will include a 

copy of this Second Report and Order in 

a report to be sent to Congress and the 

Government Accountability Office 

pursuant to the Congressional Review 

Act, see 5 U.S.C. 801(a)(1)(A). 

D. Accessible Formats 

93. To request materials in accessible 

formats for people with disabilities 

(Braille, large print, electronic files, 

audio format), send an e-mail to 

fcc504@fcc.gov or call the Consumer & 

Governmental Affairs Bureau at 202– 

418–0530 (voice) or 202–418–0432 

(TTY). 

VI. Ordering Clauses 

94. It is ordered that, pursuant to the 

authority of Sections 4(i), 303(r), and 

710 of the Communications Act of 1934, 

as amended, 47 U.S.C. 154(i), 303(r), 

and 610, this Second Report and Order 

is hereby adopted. 

95. It is further ordered that Part 20 

of the Commission’s Rules, 47 CFR part 

20, is amended as specified in 

Appendix B, effective October 8, 2010, 

except for the amendments to Section 

20.19(f), which contain an information 

collection that is subject to OMB 

approval. 

96. It is further ordered that the 

information collection contained in this 

Second Report and Order will become 

effective following approval by the 

Office of Management and Budget. The 

Commission will publish a document at 

a later date establishing the effective 

date. 

97. It is further ordered that the 

Commission’s Consumer Information 

Bureau, Reference Information Center, 

shall send a copy of the Second Report 

and Order, including the Final 

Regulatory Flexibility Analysis, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. 

List of Subjects in 47 CFR Part 20 

Communications common carriers, 

Communications equipment, 

Incorporation by reference, and Radio. 

Bulah P. Wheeler, 

Deputy Manager, Federal Communications 

Commission. 

Final Rules 

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR part 20 as 

follows: 

PART 20—COMMERCIAL MOBILE 

RADIO SERVICES 

■ 1. The authority citation for part 20 

continues to read as follows: 

Authority: 47 U.S.C. 154, 160, 201, 251– 

254, 303, 332, and 710 unless otherwise 

noted. 

§ 20.19 [Amended] 

■ 2. Amend § 20.19 as follows: 

■ a. Redesignate paragraphs (a)(3)(i) 

through (a)(3)(iv) as (a)(3)(ii) through 

(a)(3)(v); 

■ b. Add new paragraph (a)(3)(i); 

■ c. Revise paragraph (b) introductory 

text; 

■ d. Revise paragraph (c)(1)(i); 

■ e. Add paragraph (c)(1)(ii)(C); 

■ f. Revise paragraph (d)(1) introductory 

text; 

■ g. Redesignate paragraph (e)(1) as 

(e)(1)(i); 

■ h. Add paragraphs (e)(1)(ii) and (iii); 

■ i. Revise paragraph (f)(2) 

■ j. Add paragraph (f)(3); and; 

■ k. Revise paragraph (k)(1). 

§ 20.19 Hearing aid-compatible mobile 

handsets. 

(a) * * * 

(3) * * * 

(i) Handset refers to a device used in 

delivery of the services specified in 

paragraph (a)(1) of this section that 

contains a built-in speaker and is 

typically held to the ear in any of its 

ordinary uses. 

* * * * * 

(b) Hearing aid compatibility; 

technical standards. A wireless handset 

used for digital CMRS only over the 

frequency bands and air interfaces 

referenced in paragraph (a)(1) of this 

section is hearing aid-compatible with 

regard to radio frequency interference or 

inductive coupling if it meets the 

applicable technical standard(s) set 

forth in paragraphs (b)(1) and (b)(2) of 

this section for all frequency bands and 

air interfaces over which it operates, 

and the handset has been certified as 

compliant with the test requirements for 

the applicable standard pursuant to 

§ 2.1033(d) of this chapter. A wireless 

handset that incorporates an air 

interface or operates over a frequency 

band for which no technical standards 

are stated in ANSI C63.19–2007 (June 8, 

2007) is hearing aid-compatible if the 

handset otherwise satisfies the 

requirements of this paragraph. 

* * * * * 

(c) * * * 

(1) * * * 

(i) Number of hearing aid-compatible 

handset models offered. For each digital 

air interface for which it offers wireless 

handsets in the United States or 

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Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Rules and Regulations 54523 

imported for use in the United States, 

each manufacturer of wireless handsets 

must offer handset models that comply 

with paragraph (b)(1) of this section. 

Prior to September 8, 2011, handset 

models for purposes of this paragraph 

include only models offered to service 

providers in the United States. 

(A) If it offers four to six models, at 

least two of those handset models must 

comply with the requirements set forth 

in paragraph (b)(1) of this section. 

(B) If it offers more than six models, 

at least one-third of those handset 

models (rounded down to the nearest 

whole number) must comply with the 

requirements set forth in paragraph 

(b)(1) of this section. 

(ii) * * * 

(C) Beginning September 10, 2012, for 

manufacturers that together with their 

parent, subsidiary, or affiliate 

companies under common ownership or 

control, have had more than 750 

employees for at least two years and that 

offer two models over an air interface 

for which they have been offering 

handsets for at least two years, at least 

one new model rated M3 or higher shall 

be introduced every other calendar year. 

* * * * * 

(d) * * * 

(1) Manufacturers. Each manufacturer 

offering to service providers four or 

more handset models, and beginning 

September 8, 2011, each manufacturer 

offering four or more handset models, in 

a digital air interface for use in the 

United States or imported for use in the 

United States must ensure that it offers 

to service providers, and beginning 

September 8, 2011, must ensurel that it 

offers, at a minimum, the following 

number of handset models that comply 

with the requirements set forth in 

paragraph (b)(2) of this section, 

whichever number is greater in any 

given year. 

* * * * * 

(e) * * * 

(1)(i) * * * 

(ii) Notwithstanding paragraph 

(e)(1)(i) of this section, beginning 

September 10, 2012, manufacturers that 

have had more than 750 employees for 

at least two years and service providers 

that have had more than 1500 

employees for at least two years, and 

that have been offering handsets over an 

air interface for at least two years, that 

offer one or two digital wireless 

handsets in that air interface in the 

United States must offer at least one 

handset model compliant with 

paragraphs (b)(1) and (b)(2) of this 

section in that air interface, except as 

provided in paragraph (e)(1)(iii) of this 

section. Service providers that obtain 

handsets only from manufacturers that 

offer one or two digital wireless handset 

models in an air interface in the United 

States, and that have had more than 750 

employees for at least two years and 

have offered handsets over that air 

interface for at least two years, are 

required to offer at least one handset 

model in that air interface compliant 

with paragraphs (b)(1) and (b)(2) of this 

section, except as provided in paragraph 

(e)(1)(iii) of this section. For purposes of 

this paragraph, employees of a parent, 

subsidiary, or affiliate company under 

common ownership or control with a 

manufacturer or service provider are 

considered employees of the 

manufacturer or service provider. 

Manufacturers and service providers 

covered by this paragraph must also 

comply with all other requirements of 

this section. 

(iii) Manufacturers and service 

providers that offer one or two digital 

handset models that operate over the 

GSM air interface in the 1900 MHz band 

may satisfy the requirements of 

paragraph (e)(1)(ii) of this section by 

offering at least one handset model that 

complies with paragraph (b)(2) of this 

section and that either complies with 

paragraph (b)(1) of this section or meets 

the following conditions: 

(A) The handset enables the user 

optionally to reduce the maximum 

power at which the handset will operate 

by no more than 2.5 decibels, except for 

emergency calls to 911, only for GSM 

operations in the 1900 MHz band; 

(B) The handset would comply with 

paragraph (b)(1) of this section if the 

power as so reduced were the maximum 

power at which the handset could 

operate; and 

(C) Customers are informed of the 

power reduction mode as provided in 

paragraph (f)(3) of this section. 

Manufacturers and service providers 

covered by this paragraph must also 

comply with all other requirements of 

this section. 

* * * * * 

(f) * * * 

(2)(i) Disclosure requirement relating 

to handsets that operate over an air 

interface or frequency band without 

hearing aid compatibility technical 

standards. Each manufacturer and 

service provider shall ensure that, 

wherever it provides hearing aid 

compatibility ratings for a handset that 

incorporates an air interface or operates 

over a frequency band for which no 

technical standards are stated in ANSI 

C63.19–2007 (June 8, 2007), it discloses 

to consumers, by clear and effective 

means (e.g., inclusion of call-out cards 

or other media, revisions to packaging 

materials, supplying of information on 

Web sites) that the handset has not been 

rated for hearing aid compatibility with 

respect to that operation. This 

disclosure shall include the following 

language: 

This phone has been tested and rated for 

use with hearing aids for some of the wireless 

technologies that it uses. However, there may 

be some newer wireless technologies used in 

this phone that have not been tested yet for 

use with hearing aids. It is important to try 

the different features of this phone 

thoroughly and in different locations, using 

your hearing aid or cochlear implant, to 

determine if you hear any interfering noise. 

Consult your service provider or the 

manufacturer of this phone for information 

on hearing aid compatibility. If you have 

questions about return or exchange policies, 

consult your service provider or phone 

retailer. 

(ii) However, service providers are not 

required to include this language in the 

packaging material for handsets that 

incorporate a Wi-Fi air interface and 

that were obtained by the service 

provider before March 8, 2011, provided 

that the service provider otherwise 

discloses by clear and effective means 

that the handset has not been rated for 

hearing aid compatibility with respect 

to Wi-Fi operation. 

(3) Disclosure requirement relating to 

handsets that allow the user to reduce 

the maximum power for GSM operation 

in the 1900 MHz band. Handsets offered 

to satisfy paragraph (e)(1)(iii) of this 

section shall be labeled as meeting an 

M3 rating. Each manufacturer and 

service provider shall ensure that, 

wherever this rating is displayed, it 

discloses to consumers, by clear and 

effective means (e.g., inclusion of callout cards or other media, revisions to 

packaging materials, supplying of 

information on Web sites), that user 

activation of a special mode is necessary 

to meet the hearing aid compatibility 

standard. In addition, each 

manufacturer or service provider shall 

ensure that the device manual or a 

product insert explains how to activate 

the special mode and that doing so may 

result in a reduction of coverage. 

* * * * * 

(k) Delegation of rulemaking 

authority. (1) The Chief of the Wireless 

Telecommunications Bureau and the 

Chief of the Office of Engineering and 

Technology are delegated authority, by 

notice-and-comment rulemaking, to 

issue an order amending this section to 

the extent necessary to adopt technical 

standards for additional frequency 

bands and/or air interfaces upon the 

establishment of such standards by 

ANSI Accredited Standards Committee 

C63TM, provided that the standards do 

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54524 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Rules and Regulations 

not impose with respect to such 

frequency bands or air interfaces 

materially greater obligations than those 

imposed on other services subject to this 

section. Any new obligations on 

manufacturers and Tier I carriers 

pursuant to paragraphs (c) through (i) of 

this section as a result of such standards 

shall become effective no less than one 

year after release of the order adopting 

such standards and any new obligations 

on other service providers shall become 

effective no less than 15 months after 

the release of such order, except that 

any new obligations on manufacturers 

and service providers subject to 

paragraph (e)(1)(ii) of this section shall 

become effective no less than two years 

after the release of such order. 

* * * * * 

[FR Doc. 2010–22253 Filed 9–7–10; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 207 

RIN 0750–AG61 

Defense Federal Acquisition 

Regulation Supplement; Acquisition 

Strategies To Ensure Competition 

Throughout the Life Cycle of Major 

Defense Acquisition Programs (DFARS 

Case 2009–D014) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is adopting as final, 

without change, an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement the Weapon 

Systems Acquisition Reform Act of 

2009, to improve the organization and 

procedures of DoD for the acquisition of 

major weapon systems. 

DATES: Effective Date: September 8, 

2010. 

FOR FURTHER INFORMATION CONTACT: 

Ms. Meredith Murphy, 703–602–1302. 

SUPPLEMENTARY INFORMATION: 

A. Background 

On May 22, 2009, the Weapon 

Systems Acquisition Reform Act (Pub. 

L. 111–23) was enacted to improve the 

organization and procedures of DoD for 

the acquisition of major weapon 

systems. This law establishes new 

oversight entities within DoD, as well as 

new and varied weapon system 

acquisition and management reporting 

requirements. 

Section 202 directs the Secretary of 

Defense (SECDEF) to ensure that the 

acquisition strategy for each major 

defense acquisition program (MDAP) 

includes: (1) Measures to ensure 

competition at both the prime contract 

and subcontract level of the MDAP 

throughout its life cycle as a means to 

improve contractor performance; and (2) 

adequate documentation of the rationale 

for selection of the subcontractor tier or 

tiers. It also outlines measures to ensure 

such competition. Furthermore, it 

requires the SECDEF: (1) To take 

specified actions to ensure fair and 

objective ‘‘make-buy’’ decisions by 

prime contractors on MDAPs; and (2) 

whenever a decision regarding the 

source of repair results in a plan to 

award a contract for performance of 

maintenance and sustainment of a major 

weapon system, to ensure that such 

contract is awarded on a competitive 

basis with full consideration of all 

sources. 

An interim rule was published at 75 

FR 8272 on February 24, 2010. No 

comments were received in response to 

the interim rule. 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. This is not a major 

rule under 5 U.S.C. 804. 

B. Regulatory Flexibility Act 

DoD certifies that this rule will not 

have a significant economic impact on 

a substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq., 

because the changes are to internal 

Government organization and operating 

procedures only. The rule imposes new 

oversight and reporting requirements 

internal only to DoD. As such, the rule 

imposes no changes on contractors 

doing business with DoD. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply, because the rule does not 

impose any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

List of Subjects in 48 CFR Part 207 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Interim Rule Adopted as Final Without 

Change 

■ Accordingly, the interim rule 

amending 48 CFR part 207 which was 

published at 75 FR 8272 on February 24, 

2010, is adopted as a final rule without 

change. 

[FR Doc. 2010–22230 Filed 9–7–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 211 and 237 

RIN 0750–AG72 

Defense Federal Acquisition 

Regulation Supplement; Guidance on 

Personal Services (DFARS Case 2009– 

D028) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: DoD is issuing an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to enable further 

implementation of section 831 of the 

Duncan Hunter National Defense 

Authorization Act for Fiscal Year 2009 

to require DoD to develop guidance 

related to personal services contracts. 

DATES: Effective Date: September 8, 

2010. 

Comment Date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before November 8, 2010, to be 

considered in the formation of the final 

rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2009–D028, 

using any of the following methods: 

Æ Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Æ E-mail: dfars@osd.mil. Include 

DFARS Case 2009–D028 in the subject 

line of the message. 

Æ Fax: 703–602–0350. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Meredith 

Murphy, OUSD(AT&L)DPAP/DARS, 

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

To confirm receipt of your 

comment(s), please check http:// 

www.regulations.gov approximately two 

to three days after submission to verify 

posting (except allow 30 days for 

posting of comments submitted by 

mail). 

mstockstill on DSKH9S0YB1PROD with RULES