54546 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 

(b) The exhibit areas in the National 

Archives Building are closed on 

Thanksgiving and December 25. 

(c) The Presidential library museums 

are open every day except 

Thanksgiving, December 25, and 

January 1 (with the exception of the 

Lyndon Baines Johnson Library which 

is only closed December 25). 

§ 1253.10 Notification process for changes 

in hours. 

(a) NARA will follow the procedure 

outlined below when proposing to 

change hours of operations for research 

rooms, exhibit areas and museums, 

except as noted in § 1253.10(d). 

(b) Changing hours of operations for 

research rooms, exhibit areas and 

museums may not be arbitrary. 

Proposed changes must be documented 

by evidence of a business need to 

change the hours of operation. 

(c) The notification process must 

proceed as follows: 

(1) Post a notice on http:// 

www.archives.gov. 

(2) Post notices in areas visible to the 

public in their research room, exhibit 

areas or museum. 

(3) Issue a press release, e-mail 

notification, or other means normally 

used by that unit to notify the public of 

events at their location. 

(4) These notices will provide written 

determination justifying the change in 

hours. 

(d) In the event that emergency 

changes to hours of operations for 

research rooms, exhibit areas and 

museums are necessary, including but 

not limited to inclement weather, NARA 

units will give as much advance notice 

to the public as possible. Emergency 

notification will be posted at http:// 

www.archives.gov. 

PART 1254—USING RECORDS AND 

DONATED HISTORICAL MATERIALS 

2. The authority citation for part 1254 

continues to read as follows: 

Authority: 44 U.S.C. 2104(a). 

3. Amend § 1254.4 by revising 

paragraph (b) to read as follows: 

§ 1254.4 Where and when are documents 

available to me for research? 

* * * * * 

(b) The locations of NARA’s research 

rooms are shown in part 1253 of this 

chapter. Hours for research rooms are 

posted at http://www.archives.gov. 

Contact our facilities directly for 

information about their particular 

holdings. A facility or unit director may 

authorize that documents be made 

available at times other than the times 

specified. 

* * * * * 

PART 1280—USE OF NARA 

FACILITIES 

4. The authority citation for part 1280 

continues to read as follows: 

Authority: 44 U.S.C. 2104(a). 

5. Revise § 1280.62 to read as follows: 

§ 1280.62 When are the exhibit areas in the 

National Archives Building open? 

The exhibit areas’ hours of operation 

are posted at http://www.archives.gov. 

Last admission to the exhibit areas of 

the building will be no later than 30 

minutes before the stated closing hour. 

The Archivist of the United States 

reserves the authority to close the 

exhibit areas to the public at any time 

for special events or other purposes. The 

building is closed on Thanksgiving and 

December 25. 

6. Revise § 1280.92 to read as follows: 

§ 1280.92 When are the Presidential library 

museums open to the public? 

The Presidential library museums are 

open every day except Thanksgiving, 

December 25, and January 1 (with the 

exception of the Lyndon Baines Johnson 

Library which is only closed December 

25). For more specific information about 

museum hours, please contact the 

libraries directly or visit the NARA Web 

site at http://www.archives.gov. Hours 

for the Presidential libraries’ research 

rooms are also posted at http:// 

www.archives.gov. 

Dated: August 31, 2010. 

David S. Ferriero, 

Archivist of the United States. 

[FR Doc. 2010–22336 Filed 9–7–10; 8:45 am] 

BILLING CODE 7515–01–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: Proposed rule. 

SUMMARY: In this document the 

Commission seeks comment on 

revisions to the Commission’s wireless 

hearing aid compatibility rules. The 

Commission initiates this proceeding to 

ensure that consumers with hearing loss 

are able to access wireless 

communications services through a 

wide selection of devices without 

experiencing disabling interference or 

other technical obstacles. 

DATES: Interested parties may file 

comments on or before October 25, 

2010, and reply comments on or before 

November 22, 2010. 

ADDRESSES: You may submit comments, 

identified by WT Docket No. 07–250; 

FCC 10–145, by any of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web site: http:// 

www.fcc.gov/cgb/ecfs/. Follow the 

instructions for submitting comments. 

• Mail: Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail 

(although the Commission continues to 

experience delays in receiving U.S. 

Postal Service mail). All filings must be 

addressed to the Commission’s 

Secretary, Office of the Secretary, 

Federal Communications Commission. 

• People With Disabilities: Contact 

the FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by e-mail: FCC504@fcc.gov 

or phone: 202–418–0530 or TTY: 202– 

418–0432. 

For detailed instructions for 

submitting comments and additional 

information on the rulemaking process, 

see the SUPPLEMENTARY INFORMATION

section of this document. 

FOR FURTHER INFORMATION CONTACT: John 

Borkowski, Wireless 

Telecommunications Bureau, (202) 418– 

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

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Further 

Notice of Proposed Rulemaking 

(FNPRM) 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 Policy 

Statement and Second Report and Order 

summary published elsewhere in this 

issue of the Federal Register. The full 

text of the FNPRM 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 

Further Notice also may be obtained via 

the Commission’s Electronic Comment 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 54547 

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 Further Notice of 

Proposed Rulemaking 

I. Introduction 

In this FNPRM the Commission seeks 

comment on potential changes to its 

hearing aid compatibility rules in three 

respects. First, the Commission 

proposes to extend the scope of the 

rules beyond the current category of 

Commercial Mobile Radio Service 

(CMRS) to include handsets used to 

provide wireless voice communications 

over any type of network among 

members of the public or a substantial 

portion of the public. The Commission 

seeks comment on this proposal, on 

whether considerations of technological 

feasibility or marketability prevent 

application of its hearing aid 

compatibility requirements to any class 

of these handsets, and on what 

transition period is appropriate for 

applying the requirements to newly 

covered handsets. Second, the 

Commission seeks further comment on 

whether to extend its in-store testing 

requirement beyond retail stores owned 

or operated by service providers to some 

or all other retail outlets. Third, the 

Commission seeks comment on whether 

to extend to all circumstances the ability 

to meet hearing aid compatibility 

standards for radio frequency (RF) 

interference reduction for GSM 

operations in the 1900 MHz band 

through software that enables the user to 

reduce maximum power output by up to 

2.5 decibels (dB). 

II. Discussion 

A. Extension of Hearing Aid 

Compatibility Rules to New 

Technologies and Networks 

2. The Commission has concluded 

that its wireless hearing aid 

compatibility rules must provide people 

who use hearing aids and cochlear 

implants with continuing access to the 

most advanced and innovative 

communications technologies as they 

develop, while at the same time 

maximizing the conditions for 

innovation and investment. Consistent 

with this principle, the Commission 

proposes that its hearing aid 

compatibility requirements should 

apply to all customer equipment used to 

provide wireless voice communications 

over any type of network among 

members of the public or a substantial 

portion of the public via a built-in 

speaker where the equipment is 

typically held to the ear, so long as 

meeting hearing aid compatibility 

standards is technologically feasible and 

would not increase costs to an extent 

that would preclude successful 

marketing. 

3. Statutory Scope. First, the 

Commission proposes to find that the 

scope of the Hearing Aid Compatibility 

Act broadly encompasses devices used 

to provide voice communications. The 

Hearing Aid Compatibility Act, 47 

U.S.C. 610, directs the Commission to 

establish regulations to ensure 

reasonable access by persons with 

hearing loss to ‘‘telephone service.’’ To 

achieve this end, the Act directs that the 

Commission require ‘‘telephones’’ to 

meet hearing aid compatibility 

standards. The Act provides exemptions 

for, among other things, ‘‘telephones 

used with public mobile services’’ and 

‘‘telephones used with private radio 

services,’’ but stipulates, that the 

Commission should periodically review 

these exemptions and revoke or limit 

them if necessary to reflect 

developments over time in technology 

and usage patterns. The Commission 

modified the exemption for wireless 

phones in 2003. 

4. Neither the Hearing Aid 

Compatibility Act nor the broader 

Communications Act defines the terms 

‘‘telephone’’ or ‘‘telephone service.’’ In 

view of the other provisions in the Act, 

however, the Commission proposes to 

interpret the term ‘‘telephone,’’ as used 

in the Hearing Aid Compatibility Act, to 

encompass anything that is commonly 

understood to be a telephone or to 

provide telephone service, as that 

understanding may evolve over time, 

regardless of regulatory classifications 

evoked elsewhere in the 

Communications Act. The Commission 

seeks comment on this proposed finding 

and whether such a reading best fulfills 

the Congressional intent that ‘‘all 

persons should have available the best 

telephone service which is 

technologically and economically 

feasible.’’ Moreover, the Commission 

seeks comment on whether an evolving 

definition of ‘‘telephone,’’ for purposes 

of the Hearing Aid Compatibility Act, is 

consistent with the directive that the 

Commission revoke or limit the 

exemptions for public mobile services 

and private radio services over time to 

reflect developments in technology and 

usage patterns. 

5. Through the Hearing Aid 

Compatibility Act, Congress charged the 

Commission with the responsibility of 

establishing regulations as necessary to 

ensure access to telephone service by 

persons with hearing loss. As cell phone 

use became integrated into everyday 

American life, the Commission lifted 

the prior exemption for digital wireless 

telephones and subjected them to 

hearing aid compatibility requirements 

under its rules. The Commission 

proposes to find that to carry out 

Congress’s mandate to ensure access to 

telephone service by persons with 

hearing loss, it would serve the public 

interest to interpret the definition of 

telephone to include wireless handsets 

that are used for voice communications 

among members of the public or a 

substantial portion of the public, 

regardless of whether the services 

provisioned through the handset may 

fall beyond the currently covered 

category of CMRS. The Commission 

seeks comment on this proposed 

finding. 

6. In addition, the Commission 

proposes to find that this broad 

interpretation of the definition of 

telephone should include multi-use 

devices that can function as traditional 

telephones typically used by being held 

to the ear, but which may have other 

capabilities and serve additional 

purposes. While the Commission 

recognizes that rendering the telephone 

feature of such a device hearing aidcompatible may require adjustments to 

other features over which the 

Commission might otherwise not have 

jurisdiction, the Commission proposes 

to find that under these circumstances, 

the Commission nevertheless would 

have authority to require adjustments to 

both telephone features and other 

aspects of the device in order to render 

the device hearing aid-compatible. 

Under the Hearing Aid Compatibility 

Act, the Commission is specifically 

directed to establish such regulations as 

are necessary to ensure access to 

telephone service by persons with 

hearing loss. To the extent achievement 

of this goal may require imposing 

hearing aid compatibility requirements 

on multi-use devices with telephonic 

capabilities, as described above, the 

Commission proposes to find that it has 

jurisdiction to require hearing aid 

compatibility for such devices, and the 

Commission seeks comment on this 

proposed finding. 

7. Scope of Proposed Rule. The 

Commission’s proposal herein to extend 

the scope of the hearing aid 

compatibility rules is limited to wireless 

handsets that afford an opportunity to 

communicate by voice with members of 

the public or with users of a network 

that is open to the public or a 

substantial portion of the public. Thus, 

in a manner broadly consistent with the 

distinction drawn in the Hearing Aid 

Compatibility Act between ‘‘public 


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54548 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 

1The Commission’s Rules Governing Hearing 

Aid-Compatible Telephones, WT Docket 01–309, 

Report and Order, 18 FCC Rcd 16753 (2003) (2003 

Hearing Aid Compatibility Order). 

mobile services’’ and ‘‘private radio 

services,’’ the Commission proposes not 

to extend the rules to certain noninterconnected systems that are used 

solely for internal communications, 

such as public safety or dispatch 

networks. While the Commission 

recognizes that there may be important 

interests in affording access to these 

systems to employees who use hearing 

aids, the Commission tentatively 

concludes that given the very different 

circumstances of the market for these 

handsets, and in the absence of an 

existing universe of handsets meeting 

hearing aid compatibility standards, the 

burdens on manufacturers and system 

operators of satisfying hearing aid 

compatibility requirements would 

outweigh the public benefits. The 

Commission seeks comment on this 

analysis, and in particular on whether 

the four criteria for revoking or limiting 

the wireless exemption are satisfied for 

any such internal systems. 

8. At the same time, the Commission’s 

proposal would include all otherwise 

covered handsets that are used for voice 

communication with members of the 

public or a substantial portion of the 

public, including those that may not be 

interconnected with the public switched 

telephone network but can access 

another network that is open to 

members of the public. To the extent a 

handset otherwise used for internal 

communications can also be used for 

voice communications with members of 

the public outside the internal network, 

it would also be covered under this 

proposal. In addition, this proposal 

would cover handsets used for Mobile 

Satellite Service (MSS) that otherwise 

fall within the scope of the rule. In 

addressing the four criteria set forth 

below, commenters should consider 

whether the circumstances surrounding 

these or any other classes of handset 

should cause such handsets to be 

excluded from the rule. 

9. Statutory Criteria. Under the 

Hearing Aid Compatibility Act, the 

Commission is to revoke or limit the 

wireless exemption if four criteria are 

satisfied: (1) Such revocation or 

limitation is in the public interest; (2) 

continuation of the exemption without 

such revocation or limitation would 

have an adverse effect on individuals 

with hearing loss; (3) compliance with 

the requirements adopted is 

technologically feasible for the 

telephones to which the exemption 

applies; and (4) 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. The Commission seeks 

comment on whether these criteria are 

met with respect to handsets used for 

voice communications with members of 

the public or a substantial portion of the 

public. 

10. Adverse Effect on People with 

Hearing Loss. The Commission proposes 

to find that failure to extend hearing aid 

compatibility requirements broadly to 

handsets used for voice 

communications with members of the 

public or a substantial portion of the 

public would have an adverse effect on 

people with hearing loss. In the 2003 

Hearing Aid Compatibility Order,1 the 

Commission determined that continuing 

to exempt handsets providing certain 

CMRS from hearing aid compatibility 

requirements would have an adverse 

effect on individuals with hearing loss 

because the lack of hearing aidcompatible digital phones rendered 

them unable to take advantage of 

features of these phones that were 

becoming increasingly central to 

American life. The Commission 

proposes to find that this is now true 

broadly for the range of handsets used 

to provide wireless voice 

communications, including those 

operating over new and developing 

technologies. If these new handsets are 

not made hearing aid-compatible, 

consumers with hearing loss would be 

largely denied the opportunity to use 

advanced functionalities and services 

that are rapidly becoming commonplace 

in our society. Given the rapid pace of 

technological innovation and the 

development of new modes of wireless 

voice communication, the Commission 

is concerned about the consequences of 

waiting until a particular technology is 

in widespread use before beginning a 

proceeding to determine that lack of 

access to that technology adversely 

affects individuals with hearing loss. 

Rather, the Commission suggests that it 

is the inability to access innovative 

technologies as they develop that has an 

adverse effect. The Commission 

therefore proposes, in order to 

encourage manufacturers to consider 

hearing aid compatibility at the earliest 

stages of the product design process, to 

establish a broad scope for hearing aid 

compatibility obligations that is not 

dependent on particular forms of 

network technology. The Commission 

proposes to find that this broad scope is 

necessary to fulfill the goal of the 

Hearing Aid Compatibility Act that 

people who use hearing aids and 

cochlear implants have access to the 

fullest feasible extent to all means of 

voice communication. The Commission 

seeks comment on this analysis. 

11. Public Interest. The Commission 

also proposes to find that expanding the 

scope of its hearing aid compatibility 

requirements as described would serve 

the public interest. In 2003, the 

Commission found that modifying the 

wireless hearing aid compatibility 

exemption promoted the public interest 

because, among other reasons, it 

enabled people with hearing loss to 

enjoy the public safety and other 

benefits of digital wireless phones and 

it enabled all consumers to 

communicate more easily with those 

who have hearing loss. The Hearing Aid 

Compatibility Act makes clear that 

consumers with hearing loss should be 

afforded equal access to 

communications networks to the fullest 

extent feasible. To ensure the public 

interest is served in such fashion, the 

Commission’s stated policy is to 

encourage manufacturers to consider 

hearing aid compatibility at the earliest 

stages of the product design process. 

Commenters should address the 

Commission’s proposed finding that 

further modification of the exemption to 

reach handsets using new technologies 

is in the public interest today. 

12. In addition, the Commission is 

unconvinced to date by arguments that 

applying hearing aid compatibility 

requirements to MSS would not confer 

significant public benefits. To the 

contrary, even if MSS has relatively few 

consumer users, both users who 

subscribe as individuals and those who 

are provided access to MSS by their 

employers would benefit from the 

option to obtain hearing aid-compatible 

telephones. Furthermore, the usage of 

MSS may increase. Indeed, due to its 

ubiquitous coverage and its resistance to 

disruption from terrestrial disasters, in 

some situations MSS has important 

advantages over terrestrial wireless 

service. Therefore, the Commission 

proposes to find that failure to apply 

hearing aid compatibility requirements 

to MSS handsets would adversely affect 

individuals with hearing loss, and that 

it would serve the public interest to 

ensure that individuals with hearing 

loss have access to hearing aidcompatible MSS handsets. The 

Commission seeks comment on this 

analysis. 

13. Technological Feasibility. In the 

2003 Hearing Aid Compatibility Order, 

the Commission found that meeting 

hearing aid compatibility standards was 

technologically feasible for the 

telephones covered by that order in 

large part because several handsets were 

already on the market that met those 


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Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 54549 

standards. To the extent that handsets 

are currently on the market or are 

planned for introduction that fall within 

the rule coverage that the Commission 

proposes today, but that are not covered 

by the existing rule, the Commission 

seeks comment on whether they would 

meet the existing American National 

Standards Institute (ANSI) standard (or 

a similar performance standard, for 

frequency bands and air interfaces that 

are not addressed by the existing 

standard). Moreover, because the 

hearing aid compatibility standards are 

already being met for handsets that 

operate on a variety of 2G and 3G air 

interfaces over two well separated 

frequency bands, the Commission 

considers it likely, in the absence of 

evidence to the contrary, that the same 

standards could also be met for handsets 

used for similar services that are not 

within the class of currently covered 

CMRS. While the Commission 

recognizes that technological feasibility 

cannot be predicted with certainty for 

future handsets, the Commission notes 

that the Hearing Aid Compatibility Act 

expressly provides for waivers for new 

telephones or telephones associated 

with a new technology or service in 

cases of technological infeasibility. 

Therefore, absent evidence that meeting 

hearing aid compatibility standards is 

not technologically feasible for any class 

of handsets or service, the Commission 

anticipates that compliance will be 

technologically feasible. Commenters 

arguing that compliance is not 

technologically feasible should provide 

specific engineering evidence related to 

a defined class of handsets. 

14. The Commission seeks comment 

on how its hearing aid compatibility 

rules should address circumstances 

where voice capability may be enabled 

on a handset by a party other than the 

manufacturer, particularly where adding 

the new voice capability may affect 

operating parameters of the handset 

such as the frequency range, modulation 

type, maximum output power, or other 

parameters specified in the 

Commission’s rules. The Commission’s 

rules for equipment authorization hold 

the grantee to be the responsible party 

to ensure continued compliance of the 

handset and require the grantee to 

inform the Commission if these 

parameters change. The Commission 

seeks comment on the proper 

procedures for a manufacturer to test the 

hearing aid compatibility of voice 

functions that are not initially installed 

into the phone but may be enabled, for 

example, by the installation of a 

software program that affects the 

circumstances under which the 

transmitter operates. The Commission 

seeks comment on whether there are 

other ways to ascertain and regulate the 

hearing aid compatibility of such 

functions, for example, at the time the 

service provider or applications store 

enables that software. The Commission 

also seeks comment on the appropriate 

regulatory treatment if the hearing aid 

compatibility of these functions cannot 

be tested; in particular, whether a 

handset that meets hearing aid 

compatibility standards for all voice 

operations built into the phone but can 

also accommodate software-added voice 

operations that cannot be tested may be 

counted as hearing aid-compatible. 

Commenters should consider handsets 

that can provide additional voice 

capabilities to those already available in 

the off-the-shelf handset via the 

installation of software, as well as 

handsets whose only, or initial, voice 

capability is not incorporated off the 

shelf but is instead available through 

commercial sources. In addressing these 

issues, commenters should consider 

how voice services may be offered over 

new technologies such as WiMax and 

LTE interfaces and who may manage 

these capabilities. 

15. Marketability. The Commission 

previously found that the costs of 

compliance would not preclude 

successful marketing for phones covered 

under the current rules because some 

phones meeting the standard for 

acoustic coupling compliance were 

already being marketed, the 

modifications needed to achieve 

inductive coupling capability did not 

appear unduly costly, and increased 

demand was anticipated to drive down 

production costs. Based on the number 

of hearing aid-compatible models that 

are already being successfully marketed 

across multiple air interfaces and 

frequency bands, the Commission 

anticipates, in the absence of convincing 

evidence to the contrary, that other 

telephones offering similar capabilities 

and meeting the same or comparable 

compliance standards could also be 

successfully marketed. The Commission 

seeks comment, supported by evidence, 

on whether this is so, and whether there 

is any class of handsets for which the 

cost of achieving compliance would 

preclude successful marketing. Again, 

the Commission notes the availability of 

waivers in the event future new 

telephones or telephones used with new 

technologies could not be successfully 

marketed due to hearing aid 

compatibility compliance costs. 

16. Absent convincing evidence of 

technological infeasibility or costs that 

preclude marketability, the Commission 

intends to apply to all handsets that will 

be covered under its broadened rule, 

after an appropriate transition period, 

the same hearing aid compatibility 

requirements that apply to currently 

covered handsets. The Commission 

seeks comment on whether, for reasons 

of technological infeasibility or 

prohibitive costs, these numerical 

benchmarks or other rule provisions 

cannot be applied to any class of 

handsets. Again, the Commission seeks 

specific evidence as to why particular 

requirements cannot be met and what 

alternative requirements would be 

feasible and appropriate. 

17. Transition Period. Ever since the 

Commission adopted the first wireless 

hearing aid compatibility rules in 2003, 

the Commission has consistently 

recognized that it takes time for 

handsets with new specifications to be 

designed, produced, and brought to 

market, and accordingly the 

Commission has afforded meaningful 

transition periods before new hearing 

aid-compatible handset deployment 

benchmarks and other requirements 

have become effective. The Commission 

seeks comment on the appropriate 

transition period for applying hearing 

aid compatibility benchmarks and other 

requirements to lines of handsets that 

are outside the subset of CMRS that is 

currently covered by Section 20.19(a). 

Would a two-year transition be 

appropriate, consistent with the lead 

time the Commission afforded to 

comply with the original requirements 

for acoustic coupling compatibility? 

Would a shorter period, such as one 

year, be reasonable given that 

manufacturers are already meeting 

hearing aid compatibility requirements 

for currently covered classes of 

handsets, and many of the engineering 

solutions reached for those handsets 

may be transferrable to others? Is it 

likely that many handsets will already 

meet hearing aid compatibility 

standards either as already marketed or 

as currently planned, and therefore all 

that will be required is testing of 

existing handsets rather than 

introduction of new products? On the 

other hand, are there special design 

difficulties that may render a longer 

transition period necessary for some 

classes of handsets? For example, are 

there any special characteristics of 

satellite transmission that may require 

particular transition rules for MSS? In 

consideration of the time needed for 

phones to progress from the production 

line to service providers’ offerings, 

should the transition period be longer 

for service providers than for 

manufacturers, and should it be longer 

for smaller service providers than for 


srobinson on DSKHWCL6B1PROD with PROPOSALS
54550 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 

nationwide carriers? Parties are invited 

to comment on these and any other 

transition issues, either for all newly 

covered handsets or some subset of 

those handsets. 

B. In-Store Testing Requirement for 

Independent Retailers 

18. Section 20.19(c) and (d) of the 

Commission’s rules requires that 

wireless service providers make their 

hearing aid-compatible handset models 

available for consumer testing in each 

retail store that they own or operate. 

This testing requirement does not apply 

to non-service providers, such as 

individuals, independent retailers, 

importers, or manufacturers. 

19. The Commission seeks targeted 

comment on whether the in-store testing 

requirement should be extended to 

some or all retail outlets other than 

those owned or operated by service 

providers. Given the growth of new 

channels of distribution, extension of 

the in-store testing requirement would 

help to ensure that consumers have the 

information they need to choose a 

handset that will operate correctly with 

their hearing aid or cochlear implant. 

The Commission seeks comment as to 

whether, if the Commission does extend 

the in-store testing requirement to some 

retail stores other than those owned or 

operated by service providers, the 

Commission should extend it to all 

entities that sell handsets to consumers 

through physical locations or whether 

some of these retailers should be 

excluded from the requirement based on 

their general customer service practices, 

the types or numbers of handsets that 

they sell, their size, or other 

considerations. 

20. In addition to allowing consumers 

to test handsets, the Commission seeks 

comment on whether it should require 

independent retailers to allow a 

customer with hearing loss to return a 

handset without penalty, either instead 

of or in addition to an in-store testing 

requirement. The Commission notes 

that the Commission previously 

encouraged wireless service providers to 

provide a 30 day trial period or 

otherwise be flexible on their return 

policies for consumers seeking access to 

compliant phones. The Commission 

reiterates that a flexible return policy 

could help consumers with hearing loss 

by providing them with additional time 

and opportunity to ensure that their 

handset is compatible with their hearing 

aid. 

21. The Commission also seeks 

comment on the Commission’s authority 

to extend the in-store testing 

requirement beyond service providers. 

First, the Commission seeks comment 

on interpreting Sections 1 and 2 of the 

Communications Act, coupled with that 

Act’s Section 3 definition of ‘‘radio 

communications,’’ to cover retail 

operations that have become enmeshed 

in the provision of wireless service. The 

Commission seeks comment on whether 

a retailer engaged in the sale of wireless 

handsets is subject to the Commission’s 

general jurisdictional grant because it is 

engaged in providing ‘‘services,’’ 

including the sale of ‘‘instrumentalities, 

facilities, [and] apparatus * * * 

incidental to * * * transmission, within 

the meaning of Section 3.’’ 

22. Further, Section 302a of the Act 

authorizes the Commission to ‘‘make 

reasonable regulations * * * governing 

the interference potential of handsets 

which in their operation are capable of 

emitting radio frequency energy * * * 

in sufficient degree to cause harmful 

interference to radio communications 

***’’ Section 302a further provides 

that ‘‘[n]o person shall * * * sell, offer 

for sale, * * *, or use devices, which 

fail to comply with regulations 

promulgated pursuant to this section.’’ 

The Commission seeks comment on 

whether expanding in-store testing 

requirements to help consumers operate 

equipment in a manner that does not 

cause interference to their hearing aids 

would fall within its jurisdiction under 

these provisions. In addition, the 

language of the Hearing Aid 

Compatibility Act itself is expansive, 

and it clearly envisions that the 

Commission should exercise its 

mandate broadly by ‘‘establish[ing] such 

regulations as are necessary’’ to ensure 

access to telephone service by persons 

with hearing loss. The Commission 

seeks comment on whether this 

language provides a basis for exercising 

its jurisdiction over additional parties so 

that the Commission may continue to 

fulfill the mandate of the Hearing Aid 

Compatibility Act. 

C. GSM Operations at 1900 MHz 

23. In the accompanying Second 

Report and Order, the Commission 

amends its rules so that a manufacturer 

or service provider that offers one or 

two handset models over the GSM air 

interface, which would not have to offer 

any hearing aid-compatible GSM 

models but for its size, may meet its 

hearing aid compatibility deployment 

obligation by offering one handset that 

allows consumers to reduce the 

maximum transmit power only for 

operations over the GSM air interface in 

the 1900 MHz band by up to 2.5 

decibels and that meets the criteria for 

an M3 rating for RF interference 

reduction after such power reduction. 

The Commission here seeks comment 

on whether it should treat such 

handsets as hearing aid-compatible for 

all purposes. 

24. Section 20.19(b) of the 

Commission’s rules provides that a 

newly certified handset is hearing aidcompatible if it meets the standard set 

forth in the 2007 revision of ANSI 

Standard C63.19, and that standard 

states that the handset must be tested 

using its maximum rated RF output 

power. The requirement to test for 

hearing aid compatibility at full power 

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. At the same time, meeting the 

RF interference reduction standard for 

phones operating over the GSM air 

interface in the 1900 MHz band poses 

significant technical challenges, 

particularly for phones with certain 

desirable form factors. Moreover, as a 

legacy 2G network, GSM is in the 

process of being supplanted by newer 

and more powerful technologies. Under 

these circumstances, the Commission 

seeks comment on whether it is in the 

public interest to relax the requirement 

to test handsets for hearing aid 

compatibility at full power in order to 

facilitate the near-term availability of 

desirable handsets to consumers. The 

Commission welcomes data on the 

effects that a 2.5 dB reduction in 

maximum power output will have on 

coverage, as well as any other effects on 

consumers with or without hearing loss. 

In addition, the Commission asks 

commenters to address how the 

proposed revision of ANSI Standard 

C63.19, which would make it 

approximately 2.2 dB easier for a GSM 

phone to achieve an M3 rating, should 

affect the Commission’s analysis. Does 

the expected revision, by making it 

likely that many handsets will no longer 

need to reduce their power to meet the 

M3 criteria, ameliorate any negative 

effects of a rule change by rendering it 

less likely that companies will use that 

rule change beyond the near term? Or 

does the imminent prospect of a 

standards change that may largely 

eliminate the apparent problem counsel 

against further adjustments to the 

Commission’s rules to address that 

problem? 

25. The Commission proposes to find 

that if the Commission were to extend 

the ability to meet hearing aid 

compatibility standards by allowing the 

user to reduce the maximum power for 

GSM operations in the 1900 MHz band, 

the Commission would do so subject to 

the same conditions that it has imposed 

in the context of the de minimis rule. 

Thus, the handset would have to 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 54551 

2See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601– 

612, has been amended by the Small Business 

Regulatory Enforcement Fairness Act of 1996 

(SBREFA), Pub. L. 104–121, Title II, 110 Stat. 857 

(1996). 

3See 5 U.S.C. 603(a). 

4 In particular, this exemption extends to the 

requirements imposed by Chapter 6 of Title 5, 

United States Code, Section 3 of the Small Business 

Act (15 U.S.C. 632) and Section 3507 and 3512 of 

Title 44, United States Code. Consolidated 

Appropriations Act 2000, Pub. L. 106–113, 113 Stat. 

2502, App. E, Sec. 213(a)(4)(A)–(B); see 145 Cong. 

Rec. H12493–94 (Nov. 17, 1999); 47 U.S.C.A. 337 

note at Section 213(a)(4)(A)–(B). 5 47 U.S.C. 610. 

6 5 U.S.C. 604(a)(3). 

7 5 U.S.C. 601(6). 

8 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.’’ 

9 15 U.S.C. 632. 

10See SBA, Office of Advocacy, ‘‘Frequently 

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

visited Jan. 2009). 

operate at full power when calling 911, 

and the manufacturer or service 

provider would have to disclose that 

activation of a special mode is required 

to meet the hearing aid compatibility 

standard and must explain how to 

activate the special mode and the 

possibility of a loss of coverage in the 

device manual or product insert. The 

Commission seeks comment on these 

and any other possible conditions. 

III. Procedural Matters 

A. Initial Regulatory Flexibility Analysis 

26. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA),2 the Commission has prepared 

this present Initial Regulatory 

Flexibility Analysis (IRFA) of the 

possible significant economic impact on 

a substantial number of small entities of 

the policies and rules proposed in this 

Further Notice of Proposed Rule Making 

(FNPRM). Written public comments are 

requested on this IRFA. Comments must 

be identified as responses to the IRFA 

and must be filed by the deadlines for 

comments on the FNPRM provided in 

Section III.C.2. of this summary. The 

Commission will send a copy of the 

FNPRM, including this IRFA, to the 

Chief Counsel for Advocacy of the Small 

Business Administration (SBA).3

27. Although Section 213 of the 

Consolidated Appropriations Act of 

2000 provides that the RFA shall not 

apply to the rules and competitive 

bidding procedures for frequencies in 

the 746–806 MHz Band,4 the 

Commission believes that it would serve 

the public interest to analyze the 

possible significant economic impact of 

the proposed policy and rule changes in 

this band on small entities. Accordingly, 

this IRFA contains an analysis of this 

impact in connection with all spectrum 

that falls within the scope of this 

Further Notice, including spectrum in 

the 746–806 MHz Band. 

1. Need for, and Objectives of, the 

Proposed Rules 

28. The FNPRM proposes to find that 

the scope of the Commission’s hearing 

aid compatibility rules should be 

extended so as to cover all customer 

equipment used to provide wireless 

communications among members of the 

public or a substantial portion of the 

public via a built-in speaker where the 

equipment is typically held to the ear, 

so long as meeting hearing aid 

compatibility standards is 

technologically feasible and would not 

raise costs to an extent that would 

preclude successful marketing of the 

equipment. The FNPRM seeks comment 

on: (1) Whether considerations of 

technological feasibility or marketability 

prevent application of the hearing aid 

compatibility requirements, or require 

modification of those requirements, as 

to any class of handsets; and (2) what 

transition period is appropriate for 

applying the requirements to newly 

covered handsets. This proposed rule 

change would ensure that people with 

hearing loss will have access to new and 

advanced handsets regardless of the 

frequency over which they operate or 

the voice technology mode deployed, 

while maintaining consistency with the 

technological feasibility and 

marketability criteria set forth in the 

Hearing Aid Compatibility Act.5

29. The FNPRM also seeks comment 

on whether the current requirement to 

make hearing aid-compatible handsets 

available in-store for consumer testing 

should be extended to some or all retail 

outlets other than those owned or 

operated by service providers. The 

Commission seeks comment on how to 

define the class of independent retailers 

that would be required to make hearing 

aid-compatible handsets available for 

in-store testing. This rule change would 

ensure that consumers have the 

information they need to choose a 

handset that will operate correctly with 

their hearing aid or cochlear implant. 

30. Additionally, the FNPRM seeks 

comment on whether the Commission 

should treat handsets that allow 

consumers to reduce the maximum 

transmit power only for operations over 

the GSM air interface in the 1900 MHz 

band by up to 2.5 decibels, except for 

calls to 911, and that meet the criteria 

for an M3 rating after such power 

reduction, as hearing aid-compatible for 

all purposes. This rule change would 

help ensure the near-term availability of 

desirable handsets over the legacy GSM 

air interface while still affording 

substantial access to people with 

hearing loss. The Commission also 

proposes, for all such handsets, that the 

manufacturer or service provider would 

have to disclose that activation of a 

special mode is required to meet the 

hearing aid compatibility standard, how 

to activate the special mode, and the 

possibility of a loss of coverage if the 

special mode is activated. This rule 

change would ensure that consumers 

have the information they need to 

choose and operate a handset that will 

best function with their hearing aid or 

cochlear implant. 

2. Legal Basis 

31. The potential actions about which 

comment is sought in this FNPRM 

would be authorized pursuant to the 

authority contained in Sections 4(i), 

303(r), and 710 of the Communications 

Act of 1934, as amended, 47 U.S.C. 

154(i), 303(r), and 610. 

3. Description and Estimate of the 

Number of Small Entities To Which the 

Proposed Rules Would Apply 

32. 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 

proposed rules.6 The RFA generally 

defines the term ‘‘small entity’’ as having 

the same meaning as the terms ‘‘small 

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

‘‘small governmental jurisdiction.’’ 7 In 

addition, the term ‘‘small business’’ has 

the same meaning as the term ‘‘small 

business concern’’ under the Small 

Business Act.8 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’’).9 To assist the 

Commission in analyzing the total 

number of potentially affected small 

entities, the Commission requests 

commenters to estimate the number of 

small entities that may be affected by 

any rule changes that might result from 

this FNPRM. 

33. Small Businesses. Nationwide, 

there are a total of approximately 29.6 

million small businesses, according to 

the SBA.10

34. Cellular Licensees. The SBA has 

developed a small business size 

standard for small businesses in the 


srobinson on DSKHWCL6B1PROD with PROPOSALS
54552 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 

11 13 CFR 121.201, North American Industry 

Classification System (NAICS) code 517210. 

12 Id. 

13U.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). 

14 Id. The census data do not provide a more 

precise estimate of the number of firms that have 

employment of 1,500 or fewer employees; the 

largest category provided is for firms with ‘‘1000 

employees or more.’’ 

15See 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). 

16See 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. 

17See 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. 

18FCC News, ‘‘Broadband PCS, D, E and F Block 

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

19See ‘‘C, D, E, and F Block Broadband PCS 

Auction Closes,’’ Public Notice, 14 FCC Rcd 6688 

(WTB 1999). 

20See ‘‘C and F Block Broadband PCS Auction 

Closes; Winning Bidders Announced,’’ Public 

Notice, 16 FCC Rcd 2339 (2001). 

21See ‘‘Broadband PCS Spectrum Auction Closes; 

Winning Bidders Announced for Auction No. 58,’’ 

Public Notice, 20 FCC Rcd 3703 (2005). 

22See ‘‘Auction of Broadband PCS Spectrum 

License Closes; Winning Bidders Announced for 

Auction No. 71,’’ Public Notice, 22 FCC Rcd 9247 

(2007). 

23 Id. 

24See 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). 

25 47 CFR 90.814(b)(1). 

26 Id. 

27See Letter from Aida Alvarez, Administrator, 

Small Business Administration, to Thomas Sugrue, 

Chief, Wireless Telecommunications Bureau, 

Federal Communications Commission, dated 

August 10, 1999. 

28See ‘‘Correction to Public Notice DA 96–586 

‘FCC Announces Winning Bidders in the Auction 

of 1020 Licenses to Provide 900 MHz SMR in Major 

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

(WTB 1996). 

29See ‘‘Multi-Radio Service Auction Closes,’’ 

Public Notice, 17 FCC Rcd 1446 (WTB 2002). 

category ‘‘Wireless Telecommunications 

Carriers (except satellite).’’ 11 Under that 

SBA category, a business is small if it 

has 1,500 or fewer employees.12 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.13 Of 

this total, 1,378 firms had employment 

of 999 or fewer employees, and 19 firms 

had employment of 1,000 employees or 

more.14 Thus, under this category and 

size standard, the majority of firms can 

be considered small. 

35. 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.15 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.16 These small business 

size standards, in the context of 

broadband PCS auctions, have been 

approved by the SBA.17 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.18 On 

March 23, 1999, the Commission 

reauctioned 155 C, D, E, and F Block 

licenses; there were 113 small business 

winning bidders.19

36. On January 26, 2001, the 

Commission completed the auction of 

422 C and F Block PCS licenses in 

Auction 35.20 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.21 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 71.22 Of the 14 

winning bidders, six were designated 

entities.23 In 2008, the Commission 

completed an auction of 20 Broadband 

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

licenses in Auction 78.24

37. 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.25 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.26 The SBA has approved 

these small business size standards for 

the 900 MHz Service.27 The 

Commission has held auctions for 

geographic area licenses in the 800 MHz 

and 900 MHz bands. The 900 MHz SMR 

auction began on December 5, 1995, and 

closed on April 15, 1996. Sixty bidders 

claiming that they qualified as small 

businesses under the $15 million size 

standard won 263 geographic area 

licenses in the 900 MHz SMR band. The 

800 MHz SMR auction for the upper 200 

channels began on October 28, 1997, 

and was completed on December 8, 

1997. Ten bidders claiming that they 

qualified as small businesses under the 

$15 million size standard won 38 

geographic area licenses for the upper 

200 channels in the 800 MHz SMR 

band.28 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.29

38. 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. 

39. In addition, there are numerous 

incumbent site-by-site SMR licensees 

and licensees with extended 


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Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 54553 

30See AWS–1 and Broadband PCS Procedures 

Public Notice, 23 FCC Rcd 7496. Auction 78 also 

included an auction of Broadband PCS licenses. 

31 Id. at 7521–22. 

32See ‘‘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). 

33The service is defined in § 22.99 of the 

Commission’s rules, 47 CFR 22.99. 

34BETRS is defined in §§ 22.757 and 22.759 of 

the Commission’s rules, 47 CFR 22.757 and 22.759. 35 13 CFR 121.201, NAICS code 517210. 36Amendment 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). 37See 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. 

38See Service Rules for the 746–764 MHz Bands, 

and Revisions to Part 27 of the Commission’s Rules, 

Second Report and Order, 15 FCC Rcd 5299 (2000). 39 Id. at 5343 para. 108. 

40 Id. 

41 Id. at 5343 para. 108 n.246 (for the 746–764 

MHz and 776–704 MHz bands, the Commission is 

exempt from 15 U.S.C. 632, which requires Federal 

agencies to obtain Small Business Administration 

approval before adopting small business size 

standards). 

42See ‘‘700 MHz Guard Bands Auction Closes: 

Winning Bidders Announced,’’ Public Notice, 15 

FCC Rcd 18026 (WTB 2000). 

43See ‘‘700 MHz Guard Bands Auctions Closes: 

Winning Bidders Announced,’’ Public Notice, 16 

FCC Rcd 4590 (WTB 2001). 

44See In the Matter of Service Rules for the 698– 

746, 747–762 and 777–792 MHz Bands, WT Docket 

06–150, Second Report and Order, 22 FCC Rcd 

15289, 15339–15344 paras. 118–134 (2007) (700 

MHz Second Report and Order). 

45 Id. 

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. 

40. Advanced Wireless Services. In 

2008, the Commission conducted the 

auction of Advanced Wireless Services 

(‘‘AWS’’) licenses.30 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.31 Four winning 

bidders that identified themselves as 

very small businesses won 17 

licenses.32 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. 

41. Rural Radiotelephone Service. The 

Commission has not adopted a size 

standard for small businesses specific to 

the Rural Radiotelephone Service.33 A 

significant subset of the Rural 

Radiotelephone Service is the Basic 

Exchange Telephone Radio System 

(‘‘BETRS’’).34 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.35 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. 

42. 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.36 The SBA 

has approved these definitions.37 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. 

43. 700 MHz Guard Bands Licenses. 

In the 700 MHz Guard Bands Order, the 

Commission adopted size standards for 

‘‘small businesses’’ and ‘‘very small 

businesses’’ for purposes of determining 

their eligibility for special provisions 

such as bidding credits and installment 

payments.38 A small business in this 

service is an entity that, together with 

its affiliates and controlling principals, 

has average gross revenues not 

exceeding $40 million for the preceding 

three years.39 Additionally, a ‘‘very 

small business’’ is an entity that, 

together with its affiliates and 

controlling principals, has average gross 

revenues that are not more than $15 

million for the preceding three years.40

SBA approval of these definitions is not 

required.41 An auction of 52 Major 

Economic Area (MEA) licenses for each 

of two spectrum blocks commenced on 

September 6, 2000, and closed on 

September 21, 2000.42 Of the 104 

licenses auctioned, 96 licenses were 

sold to nine bidders. Five of these 

bidders were small businesses that won 

a total of 26 licenses. A second auction 

of remaining 700 MHz Guard Bands 

licenses commenced on February 13, 

2001, and closed on February 21, 2001. 

All eight of the licenses auctioned were 

sold to three bidders. One of these 

bidders was a small business that won 

a total of two licenses.43 Subsequently, 

in the 700 MHz Second Report and 

Order, the Commission reorganized the 

licenses pursuant to an agreement 

among most of the licensees, resulting 

in a spectral relocation of the first set of 

paired spectrum block licenses, and an 

elimination of the second set of paired 

spectrum block licenses (many of which 

were already vacant, reclaimed by the 

Commission from Nextel).44 A single 

licensee that did not participate in the 

agreement was grandfathered in the 

initial spectral location for its two 

licenses in the second set of paired 

spectrum blocks.45 Accordingly, at this 

time there are 54 licenses in the 700 

MHz Guard Bands. 

44. 700 MHz Band Commercial 

Licenses. There is 80 megahertz of nonGuard Band spectrum in the 700 MHz 

Band that is designated for commercial 

use: 698–757, 758–763, 776–787, and 

788–793 MHz Bands. With one 

exception, the Commission adopted 

criteria for defining two groups of small 

businesses for purposes of determining 

their eligibility for bidding credits at 

auction. These two categories are: (1) 

‘‘Small business,’’ which is defined as an 

entity with attributed average annual 


srobinson on DSKHWCL6B1PROD with PROPOSALS
54554 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 

46See Auction of 700 MHz Band Licenses 

Scheduled for Jan. 24, 2008, AU Docket No. 07–157, 

Notice and Filing Requirements, Minimum Opening 

Bids, Reserve Prices, Upfront Payments, and Other 

Procedures for Auctions 73 and 76, DA 07–4171 at 

para. 70 (WTB rel. Oct. 5, 2007); Reallocation and 

Service Rules for the 698–746 MHz Spectrum Band 

(Television Channels 52–59), Report and Order, 17 

FCC Rcd 1022, 1087–88 (2002). 

47 Id. at 1088. 

48See Letter from Aida Alvarez, Administrator, 

Small Business Administration, to Thomas Sugrue, 

Chief, Wireless Telecommunications Bureau, 

Federal Communications Commission, dated 

August 10, 1999. 

49See ‘‘Lower 700 MHz Band Auction Closes,’’ 

Public Notice, 17 FCC Rcd 17272 (WTB 2002). 

50See ‘‘Lower 700 MHz Band Auction Closes,’’ 

Public Notice, 18 FCC Rcd 11873 (WTB 2003). 

51 Id. 

52See ‘‘Auction of 700 MHz Band Licenses 

Closes,’’ Public Notice, 23 FCC Rcd 4572 (WTB 

2008). 53See fcc.gov website at http://wireless.fcc.gov/ 

auctions/ 

default.htm?job=auction_summary&id=73. 54This service is governed by subpart I of part 22 

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

22.1037. 55 13 CFR 121.201, NAICS code 517210. 56 Id. 57See 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). 

58See 47 CFR part 74, subpart I; MDS/ITFS Order, 

19 FCC Rcd 14165 (2004). 

59See 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). 

60 Id. 

61 13 CFR 121.201, NAICS code 515210. 

62 13 CFR 121.201, NAICS code 517210. 

63MDS Auction No. 6 began on November 13, 

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

won 493 licenses.) 

64 47 CFR 21.961(b)(1). 

65See 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). 

gross revenues that exceed $15 million 

and do not exceed $40 million for the 

preceding three years; and (2) ‘‘very 

small business,’’ which is defined as an 

entity with attributed average annual 

gross revenues that do not exceed $15 

million for the preceding three years.46

In Block C of the Lower 700 MHz Band 

(710–716 MHz and 740–746 MHz), 

which was licensed on the basis of 734 

Cellular Market Areas, the Commission 

adopted a third criterion for 

determining eligibility for bidding 

credits: an ‘‘entrepreneur,’’ which is 

defined as an entity that, together with 

its affiliates and controlling principals, 

has average gross revenues that are not 

more than $3 million for the preceding 

three years.47 The SBA has approved 

these small size standards.48

45. An auction of 740 licenses for 

Blocks C (710–716 MHz and 740–746 

MHz) and D (716–722 MHz) of the 

Lower 700 MHz Band commenced on 

August 27, 2002, and closed on 

September 18, 2002. Of the 740 licenses 

available for auction, 484 licenses were 

sold to 102 winning bidders. Seventytwo of the winning bidders claimed 

small business, very small business, or 

entrepreneur status and won a total of 

329 licenses.49 A second auction 

commenced on May 28, 2003, and 

closed on June 13, 2003, and included 

256 licenses: Five EAG licenses and 251 

CMA licenses.50 Seventeen winning 

bidders claimed small or very small 

business status and won 60 licenses, 

and nine winning bidders claimed 

entrepreneur status and won 154 

licenses.51

46. The remaining 62 megahertz of 

commercial spectrum was auctioned on 

January 24 through March 18, 2008. As 

explained above, bidding credits for all 

of these licenses were available to 

‘‘small businesses’’ and ‘‘very small 

businesses.’’ Auction 73 concluded with 

1090 provisionally winning bids 

covering 1091 licenses and totaling 

$19,592,420,000. The provisionally 

winning bids for the A, B, C, and E 

Block licenses exceeded the aggregate 

reserve prices for those blocks. The 

provisionally winning bid for the D 

Block license, however, did not meet 

the applicable reserve price and thus 

did not become a winning bid. 

Approximately 55 small businesses had 

winning bids.52 Currently, the 10 

remaining megahertz associated with 

the D block have not yet been 

assigned.53

47. 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.54 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.55 Under the SBA 

small business size standard, a business 

is small if it has 1,500 or fewer 

employees.56

48. Broadband Radio Service and 

Educational Broadband Service. The 

Broadband Radio Service (‘‘BRS’’), 

formerly known as the Multipoint 

Distribution Service (‘‘MDS’’),57 and the 

Educational Broadband Service (‘‘EBS’’), 

formerly known as the Instructional 

Television Fixed Service (‘‘ITFS’’),58 use 

2 GHz band frequencies to transmit 

video programming and provide 

broadband services to residential 

subscribers.59 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.60 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.61

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.62 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. 

49. The Commission has defined 

small MDS (now BRS) entities in the 

context of Commission license auctions. 

In the 1996 MDS auction,63 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.64 This 

definition of a small entity in the 

context of MDS auctions has been 

approved by the SBA.65 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 


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66Hundreds 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. 

67 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. 

68See 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). 

69See 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. 

70See 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. 

71Such 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. 

72 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). 

73See Service Rules Notice, 17 FCC Rcd at 2550– 

51 para. 145. 

74See, 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). 

75 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). 

76U.S. Census Bureau, 2007 NAICS Definitions, 

‘‘517410 Satellite Telecommunications’’; http:// 

www.census.gov/naics/2007/def/ND517410.HTM. 

77 13 CFR 121.201, NAICS code 517410. 

78U.S. Census Bureau, 2002 Economic Census, 

Subject Series: Information, ‘‘Establishment and 

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

Table 4, NAICS code 517410 (issued Nov. 2005). 

79 Id. An additional 38 firms had annual receipts 

of $25 million or more. 

80Wi-Fi (Wireless Fidelity) is a wireless 

technology that is based on the Institute of 

Electrical and Electronics Engineers 802.11 

standards. 

and that fall under the former SBA 

small business size standard for Cable 

and Other Program Distribution.66

Information available to us indicates 

that there are approximately 850 of 

these licensees and operators that do not 

generate revenue in excess of $13.5 

million annually. Therefore, 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. 

50. 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).67 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. 

51. 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.68 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.’’ 69

SBA has approved these small business 

size standards for the aforementioned 

bands.70 Correspondingly, the 

Commission adopted a bidding credit of 

15 percent for ‘‘small businesses’’ and a 

bidding credit of 25 percent for ‘‘very 

small businesses.’’ 71 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.72 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.73 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.74

The Commission also noted that it had 

found that the use of tiered or graduated 

small business definitions is useful in 

furthering its mandate under Section 

309(j) to promote opportunities for and 

disseminate licenses to a wide variety of 

applicants.75 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. 

52. Mobile Satellite Service Carriers. 

Neither the Commission nor the U.S. 

Small Business Administration has 

developed a small business size 

standard specifically for mobile satellite 

service licensees. The appropriate size 

standard is therefore the SBA standard 

for Satellite Telecommunications. The 

category of Satellite 

Telecommunications ‘‘comprises 

establishments primarily engaged in 

providing telecommunications services 

to other establishments in the 

telecommunications and broadcasting 

industries by forwarding and receiving 

communications signals via a system of 

satellites or reselling satellite 

telecommunications.’’ 76 The category 

has a small business size standard of 

$15 million or less in average annual 

receipts, under SBA rules.77 For this 

category, Census Bureau data for 2002 

show that there were a total of 371 firms 

that operated for the entire year.78 Of 

this total, 307 firms had annual receipts 

of under $10 million, and 26 firms had 

receipts of $10 million to $24,999,999.79

Consequently, the Commission 

estimates that the majority of Satellite 

Telecommunications firms are small 

entities that might be affected by its 

action. 

53. Internet Service Providers. In the 

Notice, the Commission seeks comment 

on whether to extend hearing aid 

compatibility requirements to entities 

offering access to Voice over Internet 

Protocol (VoIP) applications over WiFi 80 and other wireless technologies 

that may fall outside the definition of 

CMRS and/or the criteria in Section 

20.19(a), such as those operating on 

networks that do not employ ‘‘an innetwork switching facility that enables 


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81U.S. Census Bureau, ‘‘Internet Publishing and 

Broadcasting and Web Search Portals,’’ NAICS code 

519130. 

82U.S. Census Bureau, 2002 Economic Census, 

Subject Series: Information, ‘‘Establishment and 

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

Table 4, NAICS code 518111 (issued Nov. 2005). 

83U.S. Census Bureau, ‘‘2002 NAICS Definitions: 

519190 All Other Information Services’’ (Feb. 2004) 

http://www.census.gov. The Commission notes that 

the Commission has not reached conclusions as to 

whether, or under what conditions, VoIP services 

constitute communications or information services 

under the Communications Act, and our 

identification of this group of small entities as 

providers of ‘‘information services’’ under the 

Census Bureau definition is not intended to 

indicate any conclusions in this regard. 

84 13 CFR 121.201, NAICS code 519190. 

85U.S. Census Bureau, 1997 Economic Census, 

Subject Series: Information, ‘‘Establishment and 

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

Table 4, NAICS code 514199 (issued Oct. 2000). 

This category was created for the 2002 Economic 

Census by taking a portion of the superseded 1997 

category, ‘‘All Other Information Services,’’ NAICS 

code 514199. The data cited in the text above are 

derived from the superseded category. 

86U.S. Census Bureau, 2002 NAICS Definitions, 

‘‘334220 Radio and Television Broadcasting and 

Wireless Communications Equipment 

Manufacturing’’; http://www.census.gov/epcd/ 

naics02/def/NDEF334.HTM#N3342. 

87 13 CFR 121.201, NAICS code 334220. 

88U.S. Census Bureau, American FactFinder, 

2002 Economic Census, Industry Series, Industry 

Statistics by Employment Size, NAICS code 334220 

(rel. May 26, 2005); http://factfinder.census.gov. 

The number of ‘‘establishments’’ is a less helpful 

indicator of small business prevalence in this 

context than would be the number of ‘‘firms’’ or 

‘‘companies,’’ because the latter take into account 

the concept of common ownership or control. Any 

single physical location for an entity is an 

establishment, even though that location may be 

owned by a different establishment. Thus, the 

numbers given may reflect inflated numbers of 

businesses in this category, including the numbers 

of small businesses. In this category, the Census 

breaks out data for firms or companies only to give 

the total number of such entities for 2002, which 

was 929. 

89 Id. An additional 18 establishments had 

employment of 1,000 or more. 

90 13 CFR 121.201, NAICS code 334220. 

91U.S. Census Bureau, 2002 NAICS Definitions, 

‘‘443112 Radio, Television, and Other Electronics 

Stores’’; http://www.census.gov/epcd/naics02/def/ 

NDEF443.HTM. 

92 13 CFR 121.201, NAICS code 443112. 

the provider to reuse frequencies and 

accomplish seamless hand-offs.’’ Such 

applications may be provided, for 

example, by Internet Service Providers 

(ISPs). ISPs are Internet Publishing and 

Broadcasting and Web Search Portals 81

that provide clients access to the 

Internet and generally provide related 

services such as web hosting, web page 

designing, and hardware or software 

consulting related to Internet 

connectivity. To gauge small business 

prevalence for these Internet Publishing 

and Broadcasting and Web Search 

Portals, the Commission must, however, 

use current census data that are based 

on the previous category of Internet 

Service Providers and its associated size 

standard. That standard was: All such 

firms having $23.5 million or less in 

annual receipts. Accordingly, to use 

data available to us under the old 

standard and Census Bureau data for 

2002, there were 2,529 firms in this 

category that operated for the entire 

year.82 Of these, 2,437 firms had annual 

receipts of under $10 million, and an 

additional 47 firms had receipts of 

between $10 million and $24,999,999. 

Consequently, the Commission 

estimates that the majority of these firms 

are small entities that may be affected 

by its action. 

54. All Other Information Services. 

‘‘This industry comprises establishments 

primarily engaged in providing other 

information services (except new 

syndicates and libraries and 

archives).’’ 83 VoIP services over wireless 

technologies could be provided by 

entities that provide other services such 

as email, online gaming, web browsing, 

video conferencing, instant messaging, 

and other, similar IP-enabled services. 

The SBA has developed a small 

business size standard for this category; 

that size standard is $6.5 million or less 

in average annual receipts.84 According 

to Census Bureau data for 1997, there 

were 195 firms in this category that 

operated for the entire year.85 Of these, 

172 had annual receipts of under $5 

million, and an additional nine firms 

had receipts of between $5 million and 

$9,999,999. Consequently, the 

Commission estimates that the majority 

of these firms are small entities that may 

be affected by its action. 

55. Part 15 Handset Manufacturers. 

Manufacturers of unlicensed wireless 

handsets may also become subject to 

requirements in this proceeding for their 

handsets used to provide VoIP 

applications. The Commission has not 

developed a definition of small entities 

applicable to unlicensed 

communications handset 

manufacturers. Therefore, the 

Commission will utilize the SBA 

definition applicable to Radio and 

Television Broadcasting and Wireless 

Communications Equipment 

Manufacturing. The Census Bureau 

defines this category as follows: ‘‘This 

industry comprises establishments 

primarily engaged in manufacturing 

radio and television broadcast and 

wireless communications equipment. 

Examples of products made by these 

establishments are: Transmitting and 

receiving antennas, cable television 

equipment, GPS equipment, pagers, 

cellular phones, mobile 

communications equipment, and radio 

and television studio and broadcasting 

equipment.’’ 86 The SBA has developed 

a small business size standard for Radio 

and Television Broadcasting and 

Wireless Communications Equipment 

Manufacturing, which is: All such firms 

having 750 or fewer employees.87

According to Census Bureau data for 

2002, there were a total of 1,041 

establishments in this category that 

operated for the entire year.88 Of this 

total, 1,010 had employment of less than 

500, and an additional 13 had 

employment of 500 to 999.89 Thus, 

under this size standard, the majority of 

firms can be considered small. 

56. 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.90

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. 

57. Radio, Television, and Other 

Electronics Stores. The Census Bureau 

defines this economic census category 

as follows: ‘‘This U.S. industry 

comprises: (1) Establishments known as 

consumer electronics stores primarily 

engaged in retailing a general line of 

new consumer-type electronic products; 

(2) establishments specializing in 

retailing a single line of consumer-type 

electronic products (except computers); 

or (3) establishments primarily engaged 

in retailing these new electronic 

products in combination with repair 

services.’’ 91 The SBA has developed a 

small business size standard for Radio, 

Television, and Other Electronics 

Stores, which is: All such firms having 

$9 million or less in annual receipts.92

According to Census Bureau data for 

2002, there were 10,380 firms in this 

category that operated for the entire 


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93U.S. Census Bureau, 2002 Economic Census, 

Industry Series: Retail Trade, Table 4, Sales Size of 

Firms for the United States: 2002, NAICS code 

443112 (issued Nov. 2005). 

94 Id. An additional 123 firms had annual sales of 

$10 million or more. As a measure of small business 

prevalence, the data on annual sales are roughly 

equivalent to what one would expect from data on 

annual receipts. 955 U.S.C. 603(c)(1)–(c)(4). 

year.93 Of this total, 10,080 firms had 

annual sales of under $5 million, and 

177 firms had sales of $5 million or 

more but less than $10 million.94 Thus, 

the majority of firms in this category can 

be considered small. 

4. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements for Small Entities 

58. The Commission proposes to 

extend broadly to providers of wireless 

communications among members of the 

public or a substantial portion of the 

public using equipment that contains a 

built-in speaker and is typically held to 

the ear, and to the manufacturers of 

such equipment, the same hearing aid 

compatibility rules that currently apply 

to a defined category of commercial 

mobile radio service (CMRS). These 

regulations include: (1) Requirements to 

deploy a certain number or percentage 

of handset models that meet hearing aid 

compatibility standards, (2) ‘‘refresh’’ 

requirements on manufacturers to meet 

their hearing aid-compatible handset 

deployment benchmarks in part using 

new models, (3) a requirement that 

service providers offer hearing aidcompatible handsets with varying levels 

of functionality, (4) a requirement that 

service providers make their hearing 

aid-compatible models available to 

consumers for testing at their owned or 

operated stores, (5) point of sale 

disclosure requirements, (6) 

requirements to make consumer 

information available on the 

manufacturer’s or service provider’s 

Web site, and (7) annual reporting 

requirements. There is a de minimis 

exception from all of the requirements 

except reporting for small entities, and 

for all entities during their first two 

years of offering handsets, that offer two 

or fewer handset models over an air 

interface. The Commission seeks 

comment on whether there are any 

classes of handsets for which either it is 

technically infeasible to meet the 

hearing aid compatibility requirements 

or satisfying those requirements would 

increase costs to the point where the 

handsets could not be successfully 

marketed. The Commission also seeks 

comment on the appropriate transition 

period for applying hearing aid 

compatibility requirements to 

telephones that are outside the currently 

covered subset of CMRS. 

59. The Commission’s rules require 

that wireless service providers make 

their hearing aid-compatible handset 

models available for consumer testing in 

each retail store that they own or 

operate. The Commission seeks 

comment on whether it should extend 

the in-store testing requirement to some 

or all entities that sell handsets to 

consumers through physical locations. 

In addition, the Commission seeks 

comment about whether it should adopt 

a rule providing that a return policy 

allowing a customer with hearing loss to 

return a handset without penalty would 

qualify as an alternative means of 

satisfying the in-store testing 

requirement. 

60. Under the Commission’s rules, 

handsets must be tested for hearing aid 

compatibility at their maximum output 

power. The Commission seeks comment 

on whether it should treat as hearing 

aid-compatible for all purposes handsets 

that allow consumers to reduce the 

maximum transmit power only for 

operations over the GSM air interface in 

the 1900 MHz band by up to 2.5 

decibels and that meet the criteria for an 

M3 rating after such power reduction. 

The Commission proposes that if it were 

to extend the ability to meet hearing aid 

compatibility standards in this manner, 

it should require the handset to operate 

at full power when calling 911, the 

manufacturer or service provider would 

have to disclose that activation of a 

special mode is required to meet the 

hearing aid compatibility standard, and 

the device manual or product insert 

would have to explain how to activate 

the special mode and the possibility of 

a loss of coverage. The Commission 

seeks comment on these and any other 

possible conditions on this rule change. 

5. Steps Proposed To Minimize 

Significant Economic Impact on Small 

Entities, and Significant Alternatives 

Considered 

61. The RFA requires an agency to 

describe any significant, specifically 

small business alternatives that it has 

considered in reaching its proposed 

approach, which may include the 

following four alternatives (among 

others): ‘‘(1) The establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance or reporting requirements 

under the rule for small entities; (3) the 

use of performance, rather than design, 

standards; and (4) exemption from 

coverage of the rule, or any part thereof, 

for small entities.’’ 95

62. The Commission seeks comment 

generally on the effect the rule changes 

considered in this FNPRM would have 

on small entities, on whether alternative 

rules should be adopted for small 

entities in particular, and on what effect 

such alternative rules would have on 

those entities. The Commission invites 

comment on ways in which it can 

achieve its goals while minimizing the 

burden on small wireless service 

providers, equipment manufacturers, 

and other entities. 

63. More specifically, the Commission 

seeks comment on whether there are 

any classes of handsets that provide 

wireless communications among 

members of the public or a substantial 

portion of the public via a built-in 

speaker where the equipment is 

typically held to the ear for which either 

it is technologically infeasible to meet 

hearing aid compatibility requirements 

or satisfying those requirements would 

increase costs to the point where the 

handsets could not be successfully 

marketed. The Commission seeks 

comment on whether, for reasons of 

technological infeasibility or prohibitive 

costs, the specific numerical 

benchmarks set forth in the 

Commission’s rules or other rule 

provisions cannot be applied to any 

class of handsets. The Commission 

seeks specific evidence as to why 

particular requirements cannot be met 

and what alternative requirements 

would be feasible and appropriate. The 

Commission also asks commenters to 

suggest alternatives that may further 

reduce possible burdens on small 

entities regarding meeting the hearing 

aid compatibility requirements. 

64. The Commission recognizes that it 

takes time for handsets with new 

specifications to be designed, produced, 

and brought to market. The Commission 

therefore seeks comment on the 

appropriate transition period for 

applying hearing aid compatibility 

requirements to telephones that are 

outside the subset of CMRS that is 

currently covered by Section 20.19(a). In 

recognition that smaller service 

providers may encounter delays in 

obtaining new model handsets from 

manufacturers and vendors, the 

Commission specifically asks whether 

smaller service providers should have a 

longer transition period than Tier I 

carriers. The Commission also asks 

commenters to suggest other alternative 

transition periods that could further 

lessen the burden on small businesses. 


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65. The Commission also seeks 

comment as to whether the Commission 

should extend the in-store testing 

requirement to some or all entities other 

than those owned or operated by service 

providers that sell handsets to 

consumers through physical locations. 

The Commission further seeks 

comment, if it decides to extend this 

requirement to some but not all retail 

outlets, on how the scope of the 

requirement should be defined. Among 

other things, the Commission asks 

whether the size of an entity should be 

a factor in this definition. The 

Commission’s goal is to arrive at a 

definition that is clear and easy to 

apply, and at the same time closely 

identifies those retailers for which the 

benefits of the rule outweigh the 

burdens while reducing the burden on 

small entities. The Commission also 

seeks comment on alternatives to 

extending the in-store testing 

requirement, including whether a return 

policy allowing a customer with hearing 

loss to return a handset without penalty 

should qualify as an alternative means 

of satisfying the requirement. The 

Commission asks commenters to suggest 

alternatives that may further reduce the 

impact on small entities. 

66. Additionally, the FNPRM seeks 

comment on whether the Commission 

should treat handsets that allow 

consumers to reduce the maximum 

transmit power only for operations over 

the GSM air interface in the 1900 MHz 

band by up to 2.5 decibels and that meet 

criteria for an M3 rating after such 

power reduction as hearing aidcompatible for all purposes. This rule 

change would ease the burden on small 

entities by making it easier to satisfy 

hearing aid compatibility requirements 

for this class of handsets. 

67. Finally, if the Commission were to 

extend the ability to meet hearing aid 

compatibility standards by allowing the 

user to reduce the maximum power for 

GSM operations in the 1900 MHz band, 

it proposes to do so subject to the same 

conditions that it has imposed in the 

context of the de minimis rule. Thus, 

the handset would have to operate at 

full power when calling 911, the 

manufacturer or service provider would 

have to disclose that activation of a 

special mode is required to meet the 

hearing aid compatibility standard, and 

the device manual or product insert 

would have to explain how to activate 

the special mode and the possibility of 

a loss of coverage. This rule change 

would ensure that consumers have the 

information they need to choose and 

operate a handset that will best function 

with their hearing aid or cochlear 

implant. The Commission seeks to 

receive alternative proposals that would 

achieve this goal while further reducing 

the burdens on small business. 

68. For each of the proposals in the 

FNPRM, the Commission seeks 

discussion, and where relevant, 

alternative proposals, on the effect that 

each prospective new requirement, or 

alternative rules, might have on small 

entities. For each proposed rule or 

alternative, the Commission seeks 

discussion about the burden that the 

prospective regulation would impose on 

small entities and how the Commission 

could impose such regulations while 

minimizing the burdens on small 

entities. For each proposed rule, the 

Commission asks whether there are any 

alternatives the Commission could 

implement that could achieve the 

Commission’s goals while at the same 

time minimizing the burdens on small 

entities. For the duration of this 

docketed proceeding, the Commission 

will continue to examine alternatives 

with the objectives of eliminating 

unnecessary regulations and minimizing 

any significant economic impact on 

small entities. 

6. Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rules 

69. None. 

B. Initial Paperwork Reduction Act 

Analysis 

70. The FNPRM does not contain 

proposed information collection(s) 

subject to the Paperwork Reduction Act 

of 1995 (PRA), Public Law 104–13. 

Therefore, it does not contain any new 

or modified information collection 

burden for small business concerns with 

fewer than 25 employees, pursuant to 

the Small Business Paperwork Relief 

Act of 2002, Public Law 107–198, see 44 

U.S.C. 3506(c)(4). 

C. Other Procedural Matters 

1. Ex Parte Presentations 

71. The rulemaking shall be treated as 

a ‘‘permit-but-disclose’’ proceeding in 

accordance with the Commission’s ex 

parte rules. Persons making oral ex 

parte presentations are reminded that 

memoranda summarizing the 

presentations must contain summaries 

of the substance of the presentations 

and not merely a listing of the subjects 

discussed. More than a one or two 

sentence description of the views and 

arguments presented generally is 

required. Other requirements pertaining 

to oral and written presentations are set 

forth in Section 1.1206(b) of the 

Commission’s rules. 

2. Comment Filing Procedures 

72. Pursuant to sections 1.415 and 

1.419 of the Commission’s rules, 47 CFR 

1.415, 1.419, interested parties may file 

comments on or before October 25, 

2010, and reply comments on or before 

November 22, 2010. All filings related to 

this Further Notice of Proposed 

Rulemaking should refer to WT Docket 

No. 07–250. Comments may be filed 

using: (1) The Commission’s Electronic 

Comment Filing System (ECFS), (2) the 

Federal Government’s eRulemaking 

Portal, or (3) by filing paper copies. See 

Electronic Filing of Documents in 

Rulemaking Proceedings, 63 FR 24121 

(1998). 

• Electronic Filers: Comments may be 

filed electronically using the Internet by 

accessing the ECFS: http://www.fcc.gov/ 

cgb/ecfs/ or the Federal eRulemaking 

Portal: http://www.regulations.gov. 

Filers should follow the instructions 

provided on the Web site for submitting 

comments. 

• ECFS filers must transmit one 

electronic copy of the comments for WT 

Docket No. 07–250. In completing the 

transmittal screen, filers should include 

their full name, U.S. Postal Service 

mailing address, and the applicable 

docket number. Parties may also submit 

an electronic comment by Internet email. To get filing instructions, filers 

should send an e-mail to ecfs@fcc.gov, 

and include the following words in the 

body of the message, ‘‘get form.’’ A 

sample form and directions will be sent 

in response. 

• Paper Filers: Parties who choose to 

file by paper must file an original and 

four copies of each filing. Filings can be 

sent by hand or messenger delivery, by 

commercial overnight courier, or by 

first-class or overnight U.S. Postal 

Service mail (although the Commission 

continues to experience delays in 

receiving U.S. Postal Service mail). All 

filings must be addressed to the 

Commission’s Secretary, Marlene H. 

Dortch, Office of the Secretary, Federal 

Communications Commission, 445 12th 

Street, SW., Washington, DC 20554. 

• All hand-delivered or messengerdelivered paper filings for the 

Commission’s Secretary must be 

delivered to FCC Headquarters at 445 

12th Street, SW., Room TW–A325, 

Washington, DC 20554. The filing hours 

at this location are 8 a.m. to 7 p.m. All 

hand deliveries must be held together 

with rubber bands or fasteners. Any 

envelopes must be disposed of before 

entering the building. 

• Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 54559 

East Hampton Drive, Capitol Heights, 

MD 20743. 

• U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 445 12th Street, SW., 

Washington, DC 20554. 

73. Parties should send a copy of their 

filings to John Borkowski, Federal 

Communications Commission, Room 

6404, 445 12th Street, SW., Washington, 

DC 20554, or by e-mail to 

John.Borkowski@fcc.gov. Parties shall 

also serve one copy with the 

Commission’s copy contractor, Best 

Copy and Printing, Inc. (BCPI), Portals 

II, 445 12th Street, SW., Room CY–B402, 

Washington, DC 20554, (202) 488–5300, 

or via e-mail to fcc@bcpiweb.com. 

74. Documents in WT Docket No. 

07–250 will be available for public 

inspection and copying during business 

hours at the FCC Reference Information 

Center, Portals II, 445 12th Street, SW., 

Room CY–A257, Washington, DC 20554. 

The documents may also be purchased 

from BCPI, telephone (202) 488–5300, 

facsimile (202) 488–5563, TTY (202) 

488–5562, e-mail fcc@bcpiweb.com. 

3. Accessible Formats 

75. 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). 

IV. Ordering Clauses 

76. Accordingly, 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 Further Notice of Proposed 

Rulemaking is hereby adopted. 

77. It is further ordered that pursuant 

to applicable procedures set forth in 

Sections 1.415 and 1.419 of the 

Commission’s Rules, 47 CFR 1.415, 

1.419, interested parties may file 

comments on this Further Notice of 

Proposed Rulemaking on or before 

October 25, 2010, and reply comments 

on or before November 22, 2010. 

78. It is further ordered that the 

Commission’s Consumer & 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this FNPRM, including the Initial 

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. 

Federal Communications Commission. 

Bulah P. Wheeler, 

Deputy Manager. 

Proposed Rules 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 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. Revise paragraph (a)(1); 

b. Redesignate paragraph (a)(3) as 

(a)(4); 

c. Add new paragraph (a)(3); 

d. Revise newly designated paragraph 

(a)(4)(iv); 

e. Add paragraph (a)(4)(v); 

f. Revise paragraph (b) introductory 

text; 

g. Add paragraph (b)(1)(iii); 

h. Revise paragraph (c)(4); 

i. Revise paragraph (d)(4); 

j. Add paragraph (f)(3); and 

k. Add paragraph (l). 

§ 20.19 Hearing aid-compatible mobile 

handsets. 

(a) Scope of section; definitions. (1) 

The hearing aid compatibility 

requirements of this section apply to 

providers of wireless service that can be 

used for voice communications among 

members of the public or a substantial 

portion of the public, where such 

service is provided over frequencies in 

the 800–950 MHz or 1.6–2.5 GHz bands 

using any air interface for which 

technical standards are stated in the 

standard document ‘‘American National 

Standard Methods of Measurement of 

Compatibility Between Wireless 

Communication Devices and Hearing 

Aids,’’ American National Standards 

Institute (ANSI) C63.19–2007 (June 8, 

2007). 

* * * * * 

(3) The requirements of paragraph (l) 

of this section apply to all entities that 

sell wireless handsets that are used in 

delivery of the services specified in 

paragraph (a)(1) of this section to 

consumers through a physical location, 

whether or not those entities are 

included in paragraph (a)(1) or (a)(2) of 

this section. 

(4) * * * 

(iv) Service provider refers to a 

provider of wireless service to which 

the requirements of this section apply. 

(v) Tier I carrier refers to a service 

provider that offers commercial mobile 

radio service nationwide. 

(b) Hearing aid compatibility; 

technical standards. A wireless handset 

used only over the frequency bands and 

air interfaces referenced in paragraph 

(a)(1) of this section is hearing aidcompatible 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. 

(1) * * * 

(iii) GSM operations at 1900 MHz. 

Notwithstanding paragraphs (b)(1)(i) 

and (ii) of this section, a wireless 

handset that operates over the GSM air 

interface in the 1900 MHz frequency 

band is hearing aid-compatible for radio 

frequency interference if; 

(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 meet, at a 

minimum, the M3 rating associated with 

the technical standard set forth in ANSI 

C63.19–2007 (June 8, 2007) 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. 

* * * * * 

(c) * * * 

(4) All service providers. Each Tier I 

carrier and other service provider must 

offer its customers a range of hearing 

aid-compatible models with differing 

levels of functionality (e.g., operating 

capabilities, features offered, prices). 

Each provider may determine the 

criteria for determining these differing 

levels of functionality, and must 

disclose its methodology to the 

Commission pursuant to paragraph 

(i)(3)(vii) of this section. 

(d) * * * 

(4) All service providers. Each Tier I 

carrier and other service provider must 

offer its customers a range of hearing 

aid-compatible models with differing 


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54560 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 

levels of functionality (e.g., operating 

capabilities, features offered, prices). 

Each provider may determine the 

criteria for determining these differing 

levels of functionality, and must 

disclose its methodology to the 

Commission pursuant to paragraph 

(i)(3)(vii) of this section. 

* * * * * 

(f) * * * 

(3) Disclosure requirement relating to 

handsets that allow the user to reduce 

the maximum power for GSM operation 

in the 1900 MHz band. Handsets that 

meet the technical standard for radio 

frequency interference pursuant to 

paragraph (b)(1)(iii) of this section shall 

be labeled as meeting an M3 rating. 

* * * * * 

(l) In-store testing. Any entity that 

sells wireless handsets to consumers 

through a physical location must make 

available for consumers to test, in each 

retail store that it owns or operates, all 

of its handset models that comply with 

paragraph (b)(1) or (b)(2) of this section. 

[FR Doc. 2010–22254 Filed 9–7–10; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Part 53 

[FAR Case 2009–029; Docket 2010–0096, 

Sequence 1] 

RIN 9000–AL72 

Federal Acquisition Regulation; 

Clarification of Standard Form 26— 

Award/Contract 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Proposed rule. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council (the 

Councils) are proposing to amend the 

Federal Acquisition Regulation (FAR) to 

revise (a) the header for blocks 17 and 

18 and (b) block 18 of the Standard 

Form (SF) 26 to clarify that block 18 

should not be used when awarding a 

negotiated procurement and should 

only be checked when awarding a 

sealed-bid contract. 

DATES: Interested parties should submit 

written comments to the Regulatory 

Secretariat on or before November 8, 

2010 to be considered in the 

formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAR Case 2009–029 by any 

of the following methods: 

• Regulations.gov:http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘FAR Case 2009–029’’ under 

the heading ‘‘Enter Keyword or ID’’ and 

selecting ‘‘Search’’. Select the link 

‘‘Submit a Comment’’ that corresponds 

with ‘‘FAR Case 2009–029’’. Follow the 

instructions provided at the ‘‘Submit a 

Comment’’ screen. Please include your 

name, company name (if any), and ‘‘FAR 

Case 2009–029’’ on your attached 

document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(MVCB), ATTN: Hada Flowers, 1800 F 

Street, NW., Room 4041, Washington, 

DC 20405. 

Instructions: Please submit comments 

only and cite FAR Case 2009–029, in all 

correspondence related to this case. All 

comments received will be posted 

without change to http:// 

www.regulations.gov, including any 

personal and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Michael O. Jackson, Procurement 

Analyst, at (202) 208–4949, for 

clarification of content. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat at (202) 501–4755. Please 

cite FAR Case 2009–029. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This case was initiated after an agency 

identified an inconsistency in the use of 

the SF 26 by contracting officers. 

Although block 18 of the form is 

intended for use only with sealed-bid 

procurements, contracting officers have 

used block 18 with negotiated 

procurements, which has had 

unintended negative consequences in 

certain contract disputes. 

FAR 53.214(a) prescribes the SF 26 for 

use in contracting for supplies and 

services by sealed bidding (except for 

construction and architect-engineer 

services). The SF 26 is used to award 

sealed-bid contracts after obtaining bids 

using a SF 33, Solicitation, Offer, and 

Award. FAR 14.408–1(d)(1) specifies 

that, if an offer made using a SF 33 leads 

to further changes, the resulting contract 

must be prepared as a bilateral 

document using the SF 26. 

This case is based on instances where 

contracting officers have mistakenly 

checked block 18 when awarding 

negotiated, not sealed bid, contracts. 

Such use has created the potential for 

disputes in situations where the 

Government’s intent was not to accept 

the terms of the offer in its entirety, as 

the current wording of block 18 may 

imply. 

The Councils believe that revising the 

header for blocks 17 and 18 and block 

18 of the form will eliminate the issue. 

In addition to the recent enhancements 

to the instructions for use of the form, 

at FAR 53.214 and 53.215–1, the 

Councils propose to add ‘‘sealed bid’’ to 

the title of block 18, change ‘‘offer’’ to 

‘‘bid’’ each time it occurs in block 18, 

and add a new sentence at the end of 

the block stating that block 18 should 

only be checked when awarding a 

sealed-bid contract. 

These changes will not prohibit the 

use of the SF 26 for awarding negotiated 

procurements; it will only prohibit the 

use of block 18 of the SF 26 when 

awarding negotiated procurements. 

This is not a significant regulatory 

action and, therefore, was not subject to 

review under Section 6 of Executive 

Order 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

B. Regulatory Flexibility Act 

The Councils do not expect this 

proposed rule to 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 

rule does not impose any additional 

requirements on small businesses, but 

rather clarifies an area open to 

confusion. Therefore, an Initial 

Regulatory Flexibility Analysis has not 

been performed. The Councils will 

consider comments from small entities 

concerning the affected FAR part 53 in 

accordance with 5 U.S.C. 610. Interested 

parties must submit such comments 

separately and should cite 5 U.S.C. 601, 

et seq. (FAR Case 2009–029), in all 

correspondence. The Councils will also 

consider comments from small entities 

concerning the existing regulations in 

parts affected by this rule in accordance 

with 5 U.S.C. 610. Interested parties 

must submit such comments separately 

and should cite 5 U.S.C. 610 (FAR Case 

2009–029), in all correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the proposed changes 

to the FAR do not impose information 

collection requirements that require the 

approval of the Office of Management 


srobinson on DSKHWCL6B1PROD with PROPOSALS