[Federal Register Volume 75, Number 173 (Wednesday, September 8, 2010)]
[Rules and Regulations]
[Pages 54508-54524]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22253]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 20

[WT Docket No.07-250; FCC 10-145]


Amendment of the Commission's Rules Governing Hearing Aid-
Compatible Mobile Handsets

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission (FCC) 
adopts final rules governing wireless hearing aid compatibility that 
are intended to ensure that consumers with hearing loss are able to 
access wireless communications services through a wide selection of 
handsets without experiencing disabling interference or other technical 
obstacles.

DATES: Effective October 8, 2010, except for the amendments to Sec.  
20.19(f) which contain information collection requirements that have 
not been approved by the Office of Management and Budget (OMB). The 
Commission will publish a document in the Federal Register announcing 
the effective date of these amendments. On June 6, 2008 (73 FR 25566, 
May 7, 2008), the Director of the Federal Register approved the 
incorporation by reference of a certain publication listed in this 
final rule.

FOR FURTHER INFORMATION CONTACT: John Borkowski, Wireless 
Telecommunications Bureau, (202) 418-0626, e-mail 
<a href="/cdn-cgi/l/email-protection#642e0b0c0a4a260b160f0b13170f0d240207074a030b12"><span class="__cf_email__" data-cfemail="dd97b2b5b3f39fb2afb6b2aaaeb6b49dbbbebef3bab2ab">[email protected]</span></a>. For additional information concerning the 
Paperwork Reduction Act information collection requirements contained 
in this document, send an e-mail to <a href="/cdn-cgi/l/email-protection#0e5e5c4f4e686d6d20696178"><span class="__cf_email__" data-cfemail="adfdffecedcbcece83cac2db">[email protected]</span></a> or contact Judith B. 
Herman at 202-418-0214 or via the Internet at <a href="/cdn-cgi/l/email-protection#3c764958554854117e1274594e515d527c5a5f5f125b534a"><span class="__cf_email__" data-cfemail="d49ea1b0bda0bcf996fa9cb1a6b9b5ba94b2b7b7fab3bba2">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Policy 
Statement and Second Report and Order in WT Docket No.07-250; FCC 10-
145, adopted August 5, 2010, and released on August 5, 2010. This 
summary should be read with its companion document, the further notice 
of proposed rulemaking summary published elsewhere in this issue of the 
Federal Register. The full text of the Policy Statement and Second 
Report and Order is available for public inspection and copying during 
business hours in the FCC Reference Information Center, Portals II, 445 
12th Street SW., Room CY-A257, Washington, DC 20554. It also may be 
purchased from the Commission's duplicating contractor at Portals II, 
445 12th Street SW., Room CY-B402, Washington, DC 20554; the 
contractor's Web site, http://www.bcpiweb.com; or by calling (800) 378-
3160, facsimile (202) 488-5563, or e-mail <a href="/cdn-cgi/l/email-protection#77313434373534273e2032355914181a"><span class="__cf_email__" data-cfemail="56101515161415061f0113147835393b">[email protected]</span></a>. Copies of 
the public notice also may be obtained via the Commission's Electronic 
Comment Filing System (ECFS) by entering the docket number WT Docket 
No.07-250. Additionally, the complete item is available on the Federal 
Communications Commission's Web site at http://www.fcc.gov.

Synopsis of the Policy Statement and Second Report and Order

I. Introduction

    1. In this Policy Statement and Second Report and Order (Second 
R&O), the Commission affirms that our hearing aid compatibility rules 
must provide people who use hearing aids and cochlear implants with 
continuing access to the most advanced and innovative technologies as 
science and markets develop, while maximizing the

[[Page 54509]]

conditions for innovation and investment.
    2. The Commission also takes several actions to clarify its rules 
to keep pace with developments in technology and the market. The 
Commission clarifies that its hearing aid compatibility rules cover 
customer equipment that contains a built-in speaker and is designed to 
be typically held to the ear, adopts a streamlined procedure for 
amending its rules to incorporate an anticipated revision of the 
hearing aid compatibility technical standard that will make it 
generically applicable across frequency bands and interface modes, and 
extends its disclosure requirements to provide consumers with 
information about multi-band and multi-mode phones that operate in part 
over bands or modes for which technical standards have not been 
established.
    3. In order to ensure that people with hearing loss will have 
access to new and popular models, while continuing to protect the 
ability of small companies to compete and to foster innovation by new 
entrants, the Commission modifies the de minimis exception in its 
existing rule so that companies that are not small entities will be 
required to offer at least one hearing aid-compatible model after a 
two-year initial period. In recognition of specific challenges that 
this rule change will impose for handsets operating over the legacy GSM 
air interface in the 1900 MHz band, the Commission permits companies 
that will no longer qualify for the de minimis exception to meet 
hearing aid compatibility requirements by installing software that 
enables customers to reduce the power output by a limited amount for 
such operations. The Commission also amends its rules requiring 
manufacturers to deploy hearing aid-compatible handsets so that they 
apply to handsets sold through all distribution channels, and not only 
through service providers.
    4. The Commission also notes that later this year, the Commission 
intends to initiate a comprehensive review of the operation of our 
wireless hearing aid compatibility rules. In that review, the 
Commission will evaluate the success of our rules in making a broad 
selection of wireless phones accessible to individuals with hearing 
loss, and the Commission will consider whether further revisions to 
those rules are appropriate.

II. Background

    5. The Commission is required by law to ensure that persons with 
hearing loss have access to telephone service. The Hearing Aid 
Compatibility Act of 1988 required all telephones manufactured or 
imported for use in the United States to meet established technical 
standards for hearing aid compatibility, with certain exceptions, among 
them an exception for telephones used with mobile wireless services. 
The statute required the Commission to revoke or limit the exemption if 
it determined that:
    <bullet> Such revocation or limitation is in the public interest;
    <bullet> Continuation of the exemption without such revocation or 
limitation would have an adverse effect on people with hearing loss;
    <bullet> Compliance with the requirements adopted is 
technologically feasible for the telephones to which the exemption 
applies; and
    <bullet> Compliance with the requirements adopted would not 
increase costs to such an extent that the telephones to which the 
exemption applies could not be successfully marketed.
    6. Current Hearing Aid Compatibility Requirements. The Commission's 
requirements apply generally to providers of digital commercial mobile 
radio services (CMRS) ``to the extent that they offer real-time, two-
way switched voice or data service that is interconnected with the 
public switched network and utilizes an in-network switching facility 
that enables the provider to reuse frequencies and accomplish seamless 
hand-offs of subscriber calls,'' as well as to manufacturers of 
wireless phones used in the delivery of such services. The 
applicability of the requirements is further limited to those air 
interfaces and frequency bands (800-950 MHz and 1.6-2.5 GHz) for which 
technical standards are stated in the most recent revision of the 
American National Standards Institute (ANSI) standard governing 
wireless hearing aid compatibility (ANSI C63.19-2007).
    7. The Commission's hearing aid compatibility requirements address 
hearing aids that operate in either of two modes--acoustic coupling or 
inductive coupling. Hearing aids operating in acoustic coupling mode 
receive sound through a microphone and then amplify all sounds 
surrounding the user, including both desired sounds, such as a 
telephone's audio signal, and unwanted ambient noise. Hearing aids 
operating in inductive coupling mode turn off the microphone to avoid 
amplifying unwanted ambient noise, instead using a telecoil to receive 
only audio signal-based magnetic fields generated by inductive 
coupling-capable telephones.
    8. The rules codify the ANSI C63.19 performance levels as the 
applicable technical standard for hearing aid compatibility. Beginning 
January 1, 2010, new applications for certification must use the 2007 
version of the ANSI standard, although earlier grants of certification 
using prior versions of the standard remain valid. The Commission has 
delegated to the Wireless Telecommunications Bureau (WTB) and Office of 
Engineering and Technology (OET) authority to adopt by rulemaking 
future revisions of ANSI C63.19, including extensions of the technical 
standards to new frequency bands and air interfaces, provided the 
revisions do not raise major compliance issues.
    9. The Commission generally requires each covered manufacturer to 
offer to service providers, and each service provider to offer to its 
customers, specific numbers of handset models per air interface in its 
product line that meet, at a minimum, an M3 rating for reduction of 
radio frequency (RF) interference between handsets and hearing aids 
operating in acoustic coupling mode and a T3 rating to enable inductive 
coupling with hearing aids operating in telecoil mode. These minimum 
deployment requirements vary depending on the total number of models 
that the manufacturer or service provider offers over the air 
interface, and they increase over time from February 15, 2009, to May 
15, 2011.
    10. The rules also contain a de minimis exception to the deployment 
benchmarks for certain digital wireless handset manufacturers and 
wireless service providers. Specifically, manufacturers or providers 
that only offer one or two handset models per air interface are exempt 
from all hearing aid compatibility requirements, other than the 
reporting requirements; those that only offer three models are required 
to offer one that is hearing aid-compatible.
    11. In addition, the rules require service providers to make 
hearing aid-compatible models available for consumer testing in their 
owned or operated retail stores. The rules also require service 
providers and manufacturers to disclose in their packaging materials 
certain information about hearing aid-compatible handsets. 
Manufacturers and service providers must report annually on efforts 
toward compliance with the hearing aid compatibility requirements. In 
addition, manufacturers and service providers that operate publicly 
accessible Web sites are required to list on their Web sites all 
hearing aid-compatible models that they offer along with the ratings of 
those models and an explanation of the ratings.

III. Policy Statement

    12. Consistent with Congressional intent to afford equal access to

[[Page 54510]]

communications networks to the fullest extent feasible and longstanding 
Federal Communications Commission precedent, it is the policy of the 
Commission that our hearing aid compatibility rules provide people who 
use hearing aids and cochlear implants with continuing access to the 
most advanced and innovative technologies as science and markets 
develop. The Commission believes that following three principles will 
ensure that all Americans, including Americans with hearing loss, will 
reap the full benefits of new technologies as they are introduced into 
the marketplace. To maximize the number of accessible products for this 
population, our policies must adhere to these principles:
    <bullet> First, given that consideration of accessibility from the 
outset is more efficient than identifying and applying solutions 
retroactively, the Commission intends for developers of new 
technologies to consider and plan for hearing aid compatibility at the 
earliest stages of the product design process;
    <bullet> Second, the Commission will continue to account for 
technological feasibility and marketability as the Commission 
promulgates rules pertaining to hearing aid compatibility, thereby 
maximizing conditions for innovation and investment; and
    <bullet> Third, the Commission will provide industry with the 
ability to harness innovation to promote inclusion by allowing the 
necessary flexibility for developing a range of solutions to meet 
consumers' needs while keeping up with the rapid pace of technological 
advancement.

IV. Second Report and Order

A. Handsets and Services Covered

1. Handsets Covered by the Rule
    13. As an initial matter, the Commission amends our rules to 
clarify that hearing aid compatibility requirements apply to otherwise 
covered handsets that contain a built-in speaker and are typically held 
to the ear. This determination is consistent with the first of the 
Multi-Band Principles filed on September 11, 2008, by a working group 
of industry and consumer representatives, which states that those 
principles apply to ``handsets operating in a normal voice mode and 
typically held to the ear.'' In the order in which we first adopted 
wireless hearing aid compatibility rules (2003 Hearing Aid 
Compatibility Order), the Commission stated that devices that do not 
have any built-in speaker or ear piece would not be required to meet 
hearing aid compatibility requirements because they were unlikely to 
cause RF interference to hearing aids and they could not be feasibly 
equipped with a functioning telecoil. Consistent with that observation, 
the Commission amends our rules to define a covered ``handset'' as a 
device that contains a built-in speaker and is typically held to the 
ear in any of its ordinary uses. Thus, if a wireless device is not 
designed to be typically held to the ear in any ordinary use, but only 
provides voice communication through a speakerphone, headphone or other 
instrument that carries voice communications from the handset to the 
ear, or other means that does not involve holding it to the ear, it is 
not subject to our hearing aid compatibility requirements. The 
Commission clarifies that in this respect, ``typically'' encompasses 
any intended or anticipated ordinary use, and does not mean ``usually'' 
or ``most often.'' If a device is configured so as to enable a user to 
hold it to the ear to receive voice communications in any ordinary 
anticipated application, it is a ``handset'' covered by the rule even 
if the manufacturer or service provider expects that most users will 
operate it in a speakerphone or other mode.
    14. In the Notice in this proceeding, the Commission asked ``[w]hat 
constitutes a telephone in the context of devices that more closely 
resemble mobile computers but have voice communications capabilities'' 
and whether the Commission should broaden or otherwise modify the scope 
of its hearing aid compatibility rules in order to maintain technology 
neutrality and ensure the continuing availability of a selection of 
wireless services and features that is comparable to that available to 
the general population. Consistent with our general determination, a 
device that includes both computing and covered voice communication 
capabilities is subject to hearing aid compatibility requirements so 
long as it has a built-in speaker and is designed to be typically held 
to the ear. This scope is necessary to ensure that people with hearing 
loss will have access to all means of voice communication as devices 
become increasingly multifunctional and the lines among device 
categories continue to blur.
2. Application of Technical Standard to New Bands and Air Interfaces
    15. Background. ANSI Standard C63.19-2007 provides hearing aid 
compatibility tests for wireless handsets that use voice communications 
technologies that are in common use in the 800 MHz to 950 MHz and 1600 
MHz to 2500 MHz bands. Accordingly, our rules impose hearing aid 
compatibility requirements only on handsets that provide service over 
these frequency bands using any air interface for which technical 
standards exist in the ANSI C63.19 standard. The Commission has 
delegated to WTB and OET limited authority by rulemaking to adopt new 
technical standards for additional frequency bands and air interfaces 
as they are established by the ANSI Accredited Standards Committee 
C63\TM\ and to approve new hearing aid compatibility standards adopted 
subsequently to ANSI C63.19-2007.
    16. The Multi-Band Principles filed on September 11, 2008, to 
address the hearing aid compatibility of handsets that operate over 
multiple frequency bands or voice technology modes, some of which have 
no established hearing aid compatibility standards. The Multi-Band 
Principles propose a sequence of events to be followed when a new 
service is developed over a frequency band or air interface that is not 
yet subject to a hearing aid compatibility technical standard. 
Specifically, the Multi-Band Principles propose that a preliminary 
predictive analysis method should be employed to determine the 
likelihood of hearing aid compatibility issues for handsets when they 
operate over new frequency bands or air interfaces. If no issues are 
identified by this analysis and the handset is otherwise hearing aid-
compatible, then the handset would be deemed hearing aid-compatible 
over all frequencies and bands in which it operates, including new 
technologies, and no further testing would be required. If a potential 
hearing aid compatibility issue is identified, then an ANSI-accredited 
body would devise a hearing aid compatibility standard within a 
timeframe to be set by the Commission. Beginning 12 months after 
standards for hearing aid compatibility have been developed and adopted 
by the Commission, a new handset model that operates in a new frequency 
band or air interface could not be labeled or counted as hearing aid-
compatible if it does not meet the newly adopted hearing aid 
compatibility standard, although handsets certified prior to that point 
could continue to be counted as hearing aid-compatible.
    17. More recently, ANSI Committee C63 has developed a new draft 
standard that would revise the current ANSI C63.19-2007 standard. The 
new draft standard provides for a testing method that could be used for 
handsets using any air interface and operating over any frequency 
between 698 MHz and 6 GHz. Under this testing method, a product testing 
threshold has been established based on certain RF power levels and

[[Page 54511]]

modulation characteristics. The new draft standard provides that 
handsets operating at or below the testing threshold will be exempt 
from further testing and will be considered to have an M4 rating. 
Handsets incorporating air interfaces and frequency bands that fail the 
testing threshold criteria will be required to undergo full testing in 
accordance with the revised ANSI C63.19 standard. ANSI states that the 
revised standard has completed an initial round of balloting and round-
robin testing, and that it expects final balloting to be completed by 
the fourth quarter of 2010.
    18. Discussion. In anticipation that ANSI will adopt the draft 
standard or something similar, the Commission finds it unnecessary to 
adopt the full regime set forth in the Multi-Band Principles for 
handsets operating over air interfaces or frequency bands that lack 
standards. Rather, the ANSI draft standard enables testing over 
frequency bands or air interfaces expected to be incorporated in 
wireless handsets in the near future. Consistent with Sections 
20.19(k)(1) and (2) of our rules, the Commission delegates to WTB and 
OET the authority to adopt a new standard similar to the draft revision 
by rulemaking, and the Commission directs them to complete such a 
proceeding promptly following the adoption of such a standard by ANSI. 
In the event ANSI has not adopted a standard similar to the draft 
revision by March 31, 2011, the Commission will revisit its decision to 
withhold action on this portion of the Multi-Band Principles.
    19. Under Section 20.19(k)(1), new obligations imposed on 
manufacturers and service providers as a result of WTB's and OET's 
adoption of technical standards for additional frequency bands and/or 
air interfaces shall become effective no less than one year after 
release of the adopting order for manufacturers and CMRS providers with 
nationwide footprints (Tier I carriers) and no less than 15 months 
after release for other service providers. Consistent with this 
delegation of authority, the Commission expects that rules implementing 
the ANSI draft standard, if adopted, will apply as follows: No less 
than 12 months after release of the order adopting the standard, but at 
a later date if WTB and OET determine that a longer transition period 
is warranted, the benchmarks then in effect for other air interfaces 
will apply to manufacturers and Tier I carriers offering handsets using 
newly covered frequency bands or air interfaces. No less than 15 months 
after release of the order adopting the standard, but at a later date 
if WTB and OET determine that a longer transition period is warranted, 
the same benchmarks will apply to other service providers. These rules 
will apply to all handsets and services within the scope of the rule 
unless otherwise specified by the Commission. The authority delegated 
to WTB and OET does not permit any actions that depart substantially 
from this regime.
    20. While the Commission finds it unnecessary to adopt the Multi-
Band Principles in whole, the Commission focuses special attention on 
Principle 3, which encourages wireless carriers and manufacturers to 
consider hearing aid compatibility and identify issues early in the 
design and development of handsets. Early identification of hearing aid 
compatibility issues enables their resolution earlier and, in many 
cases, less expensively than when interference is identified in the end 
stages of handset development. Addressing hearing aid compatibility 
early on also ensures that handsets that operate over new frequency 
bands or voice technology modes will be made available to consumers 
with hearing loss as closely as possible to their availability to the 
general public.
3. Multi-Band and Multi-Mode Handsets
    21. Background. Under the Commission's rules, in order to be 
offered as hearing aid-compatible, a handset must meet hearing aid 
compatibility standards for every frequency band and air interface that 
it uses for which standards have been adopted by the Commission. In the 
Notice, the Commission tentatively concluded that, consistent with this 
principle, multi-band and multi-mode phones should not be counted as 
compatible in any band or mode if they operate over any air interface 
or frequency band for which technical standards have not been 
established. The Commission reasoned that this limitation would conform 
to consumers' expectation that a phone labeled ``hearing aid-
compatible'' is compatible in all its operations, and also that it 
would create incentives to develop new compatibility standards more 
quickly. In the First Report and Order in February 2008, the Commission 
recognized that multi-mode handsets were already on the market that 
included Wi-Fi capability, and it adopted an interim rule to address 
their status. Under the interim rule, such handsets may be counted as 
hearing aid-compatible if they meet hearing aid compatibility standards 
over all frequency bands and air interfaces for which standards exist, 
but the manufacturer and service provider must clearly disclose to 
consumers that the handset has not been rated for hearing aid 
compatibility with respect to Wi-Fi operation.
    22. The Multi-Band Principles propose that operations over 
frequency bands or air interfaces for which standards do not exist be 
tested using either the nearest existing approved standard or a 
preliminary predictive analysis method that the parties would work with 
ANSI to develop. If the preliminary predictive analysis determines that 
such operations raise no hearing aid compatibility issues, it would not 
be necessary to develop a measurement procedure for the operations, and 
handsets operating over these frequency bands or air interfaces would 
be considered hearing aid-compatible if they meet hearing aid 
compatibility standards over all frequency bands and air interfaces for 
which such standards exist. If hearing aid compatibility issues are 
identified, then during the period until a measurement procedure is 
developed and adopted by the Commission, such handsets that otherwise 
meet hearing aid compatibility standards would be considered hearing 
aid-compatible, but information that they have not been tested for all 
operations would have to be conveyed in writing to consumers at the 
point of sale and through company Web sites. Beginning 12 months after 
the new standard is adopted by the Commission, a newly produced model 
could not be counted as hearing aid-compatible for any of its 
operations unless it meets the hearing aid compatibility standard for 
the new operation; however, handsets previously counted as hearing aid-
compatible could continue to be so counted.
    23. Discussion. As discussed previously, if the expected draft 
revision of Standard C63.19 is adopted by ANSI and the Commission, the 
treatment of multi-band and multi-mode handsets will become moot 
because there will be no operations without technical standards in the 
foreseeable future. Nonetheless, the Commission expects it will take a 
minimum of two years until any such standards have been adopted and 
compliance becomes mandatory for all services. Meanwhile, handsets that 
incorporate new frequency bands and air interfaces capable of 
supporting voice services other than Wi-Fi are already coming on the 
market. Therefore, for this interim period, the Commission extends to 
all handsets that incorporate these new frequency bands and air 
interfaces the same counting and disclosure rules that currently apply 
to handsets with Wi-Fi. In other words, a handset that meets hearing 
aid

[[Page 54512]]

compatibility requirements over all air interfaces and frequency bands 
for which technical standards have been established, but that is also 
capable of supporting voice operations in new frequency bands and air 
interfaces for which standards do not exist, may be counted as hearing 
aid-compatible, provided consumers are clearly informed that it has not 
been tested for the operations for which there are no standards. This 
is consistent with the proposal in the Multi-Band Principles, which 
informs consumers that the handset has not been tested and rated in all 
wireless technologies incorporated in the phone, and that the consumer 
should thoroughly test all phone features to determine whether the 
consumer experiences any interfering noise.
    24. As recommended in the Multi-Band Principles, the Commission 
requires that for newly manufactured handsets covered by this rule, the 
following disclosure language be clearly and effectively conveyed to 
consumers wherever the hearing aid compatibility rating for the handset 
is provided, including at the point of sale and on company Web sites: 
``This phone has been tested and rated for use with hearing aids for 
some of the wireless technologies that it uses. However, there may be 
some newer wireless technologies used in this phone that have not been 
tested yet for use with hearing aids. It is important to try the 
different features of this phone thoroughly and in different locations, 
using your hearing aid or cochlear implant, to determine if you hear 
any interfering noise. Consult your service provider or the 
manufacturer of this phone for information on hearing aid 
compatibility. If you have questions about return or exchange policies, 
consult your service provider or phone retailer.'' The Commission has 
slightly revised the language proposed in the Multi-Band Principles in 
recognition that not all handsets are obtained from service providers. 
The Commission concludes that a uniform text will ensure that consumers 
are provided with consistent and sufficient information. However, 
handsets that are already on the market with other disclosure language 
that complies with our current rule will not be required to replace 
this with the newly prescribed language.
    25. This disclosure rule will apply to all handsets that operate in 
part over an air interface or frequency band that is not covered by the 
ANSI C63.19-2007 standard until the date when rules adopting any new 
standard become effective. The rule will also apply after rules 
adopting a new standard become effective to the extent that a handset 
model in fact has not been tested for previously uncovered operations 
under the new standard. However, a handset that has actually completed 
testing and been found to meet hearing aid compatibility standards 
under the new standard should not be described as not tested, but 
should be labeled with its hearing aid compatibility rating. Consistent 
with the recommendation in the Multi-Band Principles, a handset model 
launched earlier than 12 months after publication in the Federal 
Register of rules adopting any new standard could continue to be 
counted as hearing aid-compatible for operations covered under ANSI 
C63.19-2007 even if it does not meet the newly adopted standard for all 
other operations. Rather than describing such handsets as not fully 
tested, the disclosure should indicate that the phone does not meet 
hearing aid compatibility standards for some new technologies. WTB and 
OET shall promulgate rules to implement this modified disclosure 
requirement in their proceeding to consider adopting any revision of 
the ANSI standard.
    26. Finally, the Commission clarifies that the disclosure 
requirement includes handsets that are capable of supporting software 
that can activate additional voice capability. For example, some 
handsets that transmit and receive data over a Wi-Fi air interface do 
not contain within them the software to use Wi-Fi for voice 
communications, but will accommodate commercially available software to 
enable voice transmissions over Wi-Fi. Other air interfaces such as LTE 
and WiMAX, while not currently used for voice transmissions, may 
accommodate software that would enable them to be used for voice 
communication without any change to the hardware in the underlying 
handset. Unless they are informed to the contrary, consumers may 
reasonably expect that handsets which are labeled as hearing aid-
compatible will function properly with their hearing aids in all modes 
of operation for voice communication that can be reasonably 
anticipated. The Commission therefore finds that this disclosure 
requirement will afford consumers with hearing loss the opportunity to 
inquire further about their ability to use the device in all voice 
modes and make an informed choice about whether the device meets the 
consumer's needs and expectations.

B. De Minimis Exception

    27. Background. Section 20.19 of the Commission's rules provides a 
de minimis exception to hearing aid compatibility obligations for those 
manufacturers and mobile service providers that only offer a small 
number of handset models. Specifically, Section 20.19(e)(1) provides 
that manufacturers and mobile service providers offering two handset 
models or fewer in the United States over an air interface are exempt 
from the requirements of Section 20.19, other than the reporting 
requirement. Section 20.19(e)(2) provides that manufacturers or mobile 
service providers that offer three handset models over an air interface 
must offer at least one compliant model.
    28. Discussion. In order to ensure that consumers who use hearing 
aids have access to a variety of phones, while preserving competitive 
opportunities for small companies as well as opportunities for 
innovation and investment, the Commission modifies the de minimis rule 
as applied to companies that are not small entities. Specifically, the 
Commission decides that beginning two years after it offers its first 
handset model over an air interface, a manufacturer or service provider 
that is not a small entity, as defined herein, must offer at least one 
model that is rated M3 or higher and at least one model that is rated 
T3 or higher if it offers one, two or three total handset models. In 
order to maintain parity and to allow entities that have been relying 
on the de minimis rule a reasonable period for transition, this 
obligation will become effective for manufacturers and service 
providers that offer one or two handset models over an air interface 
two years after the latest of the following: The date the manufacturer 
or service provider began offering handsets over the air interface, the 
date this Order is published in the Federal Register, the date a 
hearing aid compatibility technical standard is adopted for the 
relevant operation, or the date a previously small entity no longer 
meets our small entity definition. In addition, the Commission permits 
manufacturers and service providers that would have come under the 
amended de minimis rule but for their size to satisfy hearing aid 
compatibility deployment requirements for the legacy GSM air interface 
by relying on a handset that allows consumers to reduce the maximum 
power output only for operations over the GSM air interface in the 1900 
MHz band by no more than 2.5 decibels (dB) in order to meet the RF 
interference standard.
    29. In conjunction with these modifications to the de minimis rule, 
the Commission also revises our ``refresh'' rule to clarify its 
application to manufacturers that will be newly subject to hearing aid 
compatibility requirements. The refresh rule states

[[Page 54513]]

that if a manufacturer offers any new models for a particular air 
interface, it must offer in each calendar year a number of new models 
rated M3 or higher that is equal to at least half of its total required 
number of models rated M3 or higher, except that a manufacturer that 
offers three models over an air interface must offer at least one new 
model rated M3 or higher every other calendar year. Consistent with the 
purposes of this rule, the Commission now requires manufacturers that 
are not small entities that offer two models over an air interface, 
after the first two years, to introduce at least one new model rated M3 
or higher every other year.
    30. Retention of de minimis rule for small entities. The de minimis 
rule serves two purposes. One purpose is to ensure that small 
manufacturers and service providers have an opportunity to compete in 
the market. When the Commission first adopted the de minimis exception 
in 2003, it stressed the disproportionate impact that hearing aid 
compatibility requirements could have on small manufacturers or those 
that sell only a small number of digital wireless handset models in the 
United States, as well as on service providers that offer only a small 
number of digital wireless handset models. In order to further this 
procompetitive interest, the Commission retains the de minimis 
exception in full for small entities. The Commission concludes that the 
benefits to competition outweigh any consumer harm from not requiring 
these small entities to offer hearing aid-compatible telephones.
    31. For purposes of this rule, the Commission defines ``small 
entity'' by adopting size standards consistent with those of the Small 
Business Administration (SBA). The relevant SBA categories are: (1) 
Wireless communications service providers (except satellite), and (2) 
radio and television broadcasting and wireless communications equipment 
manufacturing. A wireless communications service provider is small if 
it is independently owned and operated, is not dominant in its field of 
operation, and has 1,500 or fewer employees. Independently owned and 
operated, non-dominant firms in the category of radio and television 
broadcasting and wireless communications equipment manufacturers are 
considered small if they have 750 or fewer employees. Accordingly, the 
Commission will use 1,500 or fewer employees for wireless 
communications service providers and 750 or fewer employees for 
wireless communications equipment manufacturers as the size standards 
for applying the de minimis rule.
    32. Limitation of the de minimis rule for companies that are not 
small entities. In addition to preserving competitive opportunities for 
small entities, the de minimis rule also helps ensure that new entrants 
to the market have the opportunity to innovate. In the First Report and 
Order, the Commission expressed its concern that the de minimis rule 
``not be limited in a manner that would compromise its effectiveness in 
promoting innovation and competition.'' Several commenters contend that 
the de minimis rule allows new entrants to the handset manufacturing 
marketplace to develop innovative handsets and expeditiously bring them 
to market.
    33. The Commission recognizes that new entrants may bring 
innovations to the wireless handset market, and that they may be 
discouraged from doing so if their first products are required to meet 
specific technical mandates. Thus, the Commission continues to apply 
the existing de minimis rule during the first two years that a 
manufacturer or service provider of any size is offering handsets, and 
during the first two years that an established entity is offering 
handsets over a particular air interface. The Commission is not 
persuaded, however, that the interest in innovation requires preserving 
the de minimis exception for large entities indefinitely. Once an 
entity with substantial resources is established as a manufacturer or 
service provider, it should be able to offer some handsets that meet 
the needs of consumers with hearing aids at the same time as it is 
innovating and investing.
    34. The Commission notes that while several commenters argue that 
the de minimis rule is necessary to allow new entrants to innovate, 
they generally do not specifically argue that this requires the 
exception to be maintained indefinitely. To the contrary, they contend 
that manufacturers will typically expand their product offerings and 
meet hearing aid compatibility requirements after an initial period. 
Indeed, some parties have recently proposed a limitation of the de 
minimis exception to two years as a possible alternative to the current 
rule. The Commission notes that Apple, Inc. (Apple) has used the de 
minimis rule over the past three years to continue offering its iPhone 
without full hearing aid compatibility. However, Apple's stated need 
for the de minimis exception is due to technical circumstances 
surrounding GSM operation over the 1900 MHz band by products with thin 
form configurations, which the Commission addresses below. To the 
extent other unique circumstances may arise in the future, the 
Commission finds they would be better addressed through case-by-case 
consideration, rather than by retaining an overly broad de minimis rule 
that potentially denies access to handsets by people with hearing loss.
    35. The Commission is not persuaded by arguments that market forces 
render modification of the de minimis rule unnecessary. Several 
commenters argue that after a period of time, manufacturers will 
naturally expand their product offerings and thereby become subject to 
hearing aid compatibility requirements. While such an expansion of 
portfolios occurs in many instances, it has not occurred, for example, 
with Apple. Other commenters argue that in light of the large number of 
hearing aid-compatible handsets that are currently on the market, it is 
unnecessary to apply hearing aid compatibility requirements to large 
entities with limited product lines. This argument overlooks that each 
company that offers a hearing aid-compatible handset adds to the 
diversity of choices on the market, and therefore there is a public 
interest benefit to defining the exception no more broadly than 
necessary to promote competition and innovation.
    36. The two-year entry period. In order to preserve the opportunity 
for new entrants to develop innovative products and services, the de 
minimis rule will continue to be available during the first two years 
that a manufacturer or service provider is in the relevant business. 
Similarly, a manufacturer or service provider of any size may continue 
to use the de minimis rule during the first two years that it offers 
handsets that operate over a particular air interface. The Commission 
finds that, in light of typical industry product cycles, two years is 
an appropriate period for a company that is not a small entity to 
introduce a hearing aid-compatible handset. For example, Apple 
introduced its third iPhone model within approximately two years after 
bringing the original iPhone to market. While the interest in 
innovation counsels in favor of permitting any company to introduce its 
first handset model over an air interface without meeting hearing aid 
compatibility standards, the public interest requires that a sizable 
company, once it is on its second or third generation of handsets, 
place a high enough priority on hearing aid compatibility to meet these 
standards for at least one model.
    37. The Commission also allows a similar two-year transition period 
in other circumstances where an entity

[[Page 54514]]

that offers one or two handsets over an air interface becomes newly 
required to offer hearing aid-compatible handsets. The Commission 
recognizes that companies, and particularly manufacturers, that until 
now have not been required to offer hearing aid-compatible handsets 
will need a transition period to begin doing so. Accordingly, the new 
requirements will not become applicable to entities that are currently 
in the relevant business until two years after this Order is published 
in the Federal Register. Similarly, the Commission provides a two-year 
transition when a previously small business first exceeds the small 
business size standard. In addition, when hearing aid compatibility 
standards are newly adopted for an air interface or frequency band, 
manufacturers and service providers that offer one or two handset 
models over that air interface or frequency band will not be required 
to offer a hearing aid-compatible model until two years after rules 
adopting the technical standard are published in the Federal Register. 
While the Commission recognizes that manufacturers are typically aware 
of proposed standards well before they are adopted, the Commission is 
persuaded that businesses with small product lines, because they have 
less flexibility to work with multiple form factors and other design 
features, may need more time to introduce hearing aid-compatible 
products under these circumstances than the minimum of one year 
afforded to other manufacturers and service providers. The two-year 
transition period places companies in all of these circumstances on an 
equal footing with companies that are newly entering the market.
    38. GSM in the 1900 MHz band. In recognition of the special 
technical challenges of meeting hearing aid compatibility standards for 
handsets with certain desirable form factors operating over the legacy 
2G GSM air interface in the 1900 MHz band, the Commission permits 
companies that would come under the amended de minimis rule but for 
their size to satisfy the hearing aid-compatible handset deployment 
requirement for GSM using a handset that allows the customer to reduce 
the maximum output power for GSM operations in the 1900 MHz band by up 
to 2.5 dB in order to meet the RF interference standard.
    39. The Commission finds that a special allowance to meet hearing 
aid compatibility standards for handsets operating over the 2G GSM 
network at 1900 MHz, in the narrow context of companies that but for 
their size would be eligible for the amended de minimis exception, is 
in the public interest. Achieving hearing aid compatibility for GSM 
handsets in the 1900 MHz band implicates special technological 
challenges. The Commission has noted that ``technological issues make 
it difficult to produce a wide variety of [GSM] handsets that both meet 
the M3 standard for reduced RF interference for acoustic coupling and 
include certain popular features.'' For example, based on the hearing 
aid compatibility status reports filed by handset manufacturers in July 
2010 for the reporting period from July 1, 2009, to June 30, 2010, 121 
out of 122 handsets operating over the CDMA air interface, or 99%, were 
rated M3 or better, whereas only 82 of 153 GSM handsets, or 54%, were 
rated M3 or better. Certain technological choices in handset form and 
function, such as thin form factors and touch screens, increase the 
difficulty of meeting the ANSI standard for these handsets while 
bringing unique benefits to consumers. If the Commission were to apply 
hearing aid compatibility technical standards strictly to manufacturers 
that narrowly specialize in phones with these features, the Commission 
is concerned that such handsets might become unavailable to consumers 
with and without hearing loss alike. Alternatively, such manufacturers 
may choose to produce additional models with no unique features that 
are not demanded by the market simply to meet the new benchmarks that 
will apply to them two years following the release of this Order. A 
targeted approach that allows some flexibility in the hearing aid 
compatibility technical standards, to accommodate this narrow 
situation, will avoid these consequences and better promote access for 
people with hearing loss.
    40. The Commission further finds that allowing hearing aid-
compatible phones to incorporate a limited user-controlled power 
reduction option under such circumstance is an appropriate means to 
address these concerns. A 2.5 dB reduction in power will have limited 
impact on the ability of people with hearing loss to use the affected 
phones. For one thing, any impact would be limited to those times when 
a handset is operating on GSM and at 1900 MHz. Furthermore, the 
diminution in power that occurs from a 2.5 dB loss should generally 
have an effect only when a handset is operated near the edge of 
reliable service coverage. Handsets usually operate at no more power 
than needed in order to prolong the battery charge and minimize 
potential interference, and they typically transmit at full power only 
to overcome signal fading in areas where there are obstructions or a 
large distance between the handset and the nearest base station. In 
addition, the modified rule applies only to 2G GSM technology, which is 
being phased out in favor of 3G alternatives. Also, as described by 
ANSI ASC C63\TM\, the new version of the ANSI C63.19 standard that is 
currently under consideration, because it will measure RF interference 
potential directly and eliminate the need for certain conservative 
assumptions, will make it approximately 2.2 dB easier for a GSM phone 
to achieve an M3 rating. The Commission expects that if the new 
standard is adopted, manufacturers will find it in their interest to 
abandon the power reduction if possible, or diminish it to the extent 
they can, in order to make their phones most attractive to people with 
hearing loss.
    41. The Commission recognizes, as certain parties have argued, that 
the Commission has previously disfavored reduction in output power as a 
means of meeting hearing aid compatibility requirements. Consistent 
with these prior holdings, the Commission affirms that the requirement 
to test for hearing aid compatibility at full power generally serves 
the important goal of ensuring that people with hearing loss have equal 
access to all of the service quality and performance that a given 
wireless phone provides. The Commission finds, however, in this narrow 
context, that the interest in fully equal access is outweighed by the 
importance of preserving the availability of a small category of phones 
that have desirable and beneficial features, and that will be made 
substantially accessible to people with hearing loss, from companies 
that specialize in producing only such phones. In the Further Notice of 
Proposed Rulemaking, issued together with this Second Report and Order, 
the Commission requests comment on whether to extend this exception to 
the full power testing requirement beyond companies that offer only one 
or two handset models. In addition, as proposed by HLAA, the Commission 
will monitor the impact of this rule and revisit the need for it in the 
future. In particular, in the event a new ANSI technical standard is 
adopted, the Commission will initiate a review of this rule shortly 
thereafter.
    42. Accordingly, subject to the conditions set forth below, the 
Commission amends its rules so that a company offering one or two 
handset models over the GSM air interface that would have been eligible 
for the amended de minimis exception rule but for its size may satisfy 
its obligation to

[[Page 54515]]

offer one hearing aid-compatible handset over the GSM air interface 
through a handset that lets the consumer reduce maximum transmit power 
for GSM operations in the 1900 MHz band by up to 2.5 decibels and that 
then meets the ANSI criteria for an M3 rating after such power 
reduction. The power reduction must affect only 2G GSM operations in 
the 1900 MHz band, and the phone's default setting must be for full 
power operation. Once a handset meeting these criteria has been 
introduced in order to satisfy this hearing aid compatibility 
deployment requirement, the manufacturer or service provider may 
continue to count it as a hearing aid-compatible handset even if it 
increases its number of handset models operating over the GSM air 
interface beyond two.
    43. The Commission does find that two conditions on this rule are 
necessary in the public interest. First, through software or other 
programming, the Commission requires these handsets to operate at full 
transmit power when calling 911 on GSM at 1900 MHz. Although some 
parties have argued that powering the phone back up in this 
circumstance would raise consumer awareness and education issues, the 
Commission finds that the public interest is better served by 
maximizing the coverage for a 911 call even if some interference is 
experienced by consumers who use hearing aids. In addition, the 
Commission requires that consumers be adequately informed of the need 
to select the power reduction option to achieve hearing aid 
compatibility and of the consequences of doing so. Specifically, 
wherever a manufacturer or service provider provides the hearing aid 
compatibility rating for such a handset, it shall indicate that user 
activation of a special mode is necessary to meet the hearing aid 
compatibility standard. In addition, the handset manual or a product 
insert must explain how to activate the special mode and that doing so 
may result in a diminution of coverage.
    44. Other circumstances. In recent filings, Research in Motion 
Limited (RIM) has urged the Commission to retain a de minimis rule that 
would apply in situations where handsets are being phased out of 
production or retail sales portfolios. RIM states that ``if a 
manufacturer or service provider is phasing out a particular air 
interface but still offers two or three handsets for a particular air 
interface, absent the current de minimis exception or a similar 
provision it would be compelled (regardless of carrier or consumer 
demand) to either discontinue all of the models concurrently with the 
HAC model, or maintain the HAC model solely for the purposes of 
enabling it to continue offering the non-HAC model(s).'' RIM suggests a 
possible rule under which if a manufacturer or service provider offers 
four or more handsets over an air interface during a given calendar 
year, in the next calendar year offers three or fewer handsets, and in 
subsequent calendar years offers one or two of those remaining 
handsets, it would not need to offer any hearing aid-compatible 
handsets beginning in the third year.
    45. The Commission declines to take action on RIM's proposal in the 
absence of a developed record or concrete evidence of a problem that 
needs to be addressed. While the scenario that RIM poses is plausible 
on its face, it provides no example of any instance where a 
manufacturer or service provider has actually used or will use the de 
minimis rule to manage its phasing out of a portfolio in which it 
previously offered hearing aid-compatible handsets. In the event a 
situation arises where retaining a hearing aid-compatible offering over 
an air interface that is being discontinued would cause hardship to a 
manufacturer or service provider, and discontinuing the handset would 
not unduly disadvantage people with hearing loss, the Commission would 
entertain a request for waiver.
    46. Review of the de minimis rule. Hearing Loss Association of 
America (HLAA) proposes that whatever actions the Commission takes, it 
should revisit any changes to the de minimis rule in a timely manner to 
see what impact they have in the real world. While the Commission 
believes the actions it takes today will best balance the interests of 
industry and consumers, it recognizes that these rules are complex and 
their consequences over time cannot be predicted with certainty. The 
Commission therefore will undertake a comprehensive review of the de 
minimis rule no later than 2015.

C. New Distribution Channels

    47. Background. Under current rules, manufacturers are required to 
produce a certain number or percentage of handset models that meet the 
Commission's hearing aid compatibility standards. These hearing aid 
compatibility deployment benchmarks for manufacturers, however, are 
codified in terms of the handsets that they offer to service providers. 
Thus, the rules apply only to handsets that manufacturers offer to 
service providers and that service providers then offer to consumers. 
If handsets are not offered to service providers, then the benchmarks 
in Section 20.19 do not apply.
    48. Discussion. Based on the record in this proceeding, the 
Commission updates our rules and amend Section 20.19(c) and (d) to 
apply the deployment benchmarks to all handsets that a wireless handset 
manufacturer produces for distribution in the United States that are 
within the scope of Section 20.19(a) of the rule. This rule change will 
address new handset manufacturer distribution models in existing 
networks and ensure that wireless handsets will be covered by our 
hearing aid compatibility obligations regardless of distribution and 
sales channels.
    49. The Commission finds this rule change will serve the public 
interest as a better and more proactive approach to ensure the 
availability of hearing aid-compatible handsets in the developing 
handset marketplace. Whatever may have been the case in 2007, it is not 
now premature to apply hearing aid compatibility requirements to all 
distribution channels. To the contrary, a variety of phones is readily 
available to consumers through outlets ranging from online retailers to 
convenience stores to electronics specialty outlets, as well as 
directly from manufacturers. Indeed, Google recently experimented with 
selling its Nexus One handset only directly to consumers. While the 
Commission cannot predict how the market will develop, extending the 
scope of the manufacturer requirement to all handsets will ensure that 
wireless handsets are available to people with hearing loss regardless 
of distribution and sales channels. Moreover, no commenter has 
identified, and the Commission cannot conceive, any reason why meeting 
deployment benchmarks for hearing aid-compatible handsets might be more 
difficult or burdensome as a result of the method of distribution.
    50. The Commission recognizes that manufacturers may need time to 
meet the requirements of the changed rule. For example, a manufacturer 
that does not produce any handsets for sale through service providers 
is not currently required to offer any hearing aid-compatible handsets, 
and therefore may need to make technological adjustments to meet these 
requirements. Therefore, the Commission concludes that manufacturers 
will have until 12 months from publication of the rule in the Federal 
Register to come into compliance with this new provision. This is the 
same as the minimum compliance period that our rules currently provide 
when the Commission adopts hearing aid compatibility standards for a 
new frequency band or air interface.

[[Page 54516]]

    51. The Commission clarifies that handsets covered by this rule 
include handsets that manufacturers sell to businesses for distribution 
to their employees. For example, a business may distribute handsets to 
its employees that are intended primarily for internal communications 
or for data tracking, but that also incorporate external voice 
communications capability within the scope of Section 20.19(a). If the 
handset incorporates a built-in speaker and is typically held to the 
ear, then the manufacturer must count that handset in determining 
whether it meets the benchmarks for deploying hearing aid-compatible 
handsets.
    52. Finally, the Commission clarifies that the manufacturer of a 
phone is the party that produces it. The Commission expects to consider 
this issue further in the 2010 review.

D. Volume Controls

    53. Background. In the Notice, the Commission urged all interested 
parties to specifically look into adding volume controls to wireless 
handsets. The Commission noted earlier statements by some in the deaf 
and hard of hearing community that one of hearing aid users' most 
important concerns regarding wireless devices is the lack of adequate 
volume control on handsets. The Notice sought comment on whether any 
volume control requirements should be incorporated into our rules, and 
if so what they should be.
    54. Discussion. As several commenters have noted, the Alliance for 
Telecommunications Industry Solutions (ATIS) Incubator Solutions 
Program <greek-i>4--Hearing Aid Compatibility (AISP.4-HAC) has formed a 
working group, denominated WG-11, to investigate the interaction of 
wireless handsets and digital hearing aids. The findings of this 
investigation, including recommendations for achieving adequate 
listening levels for consumers who wear hearing aids while using 
wireless phones, will be shared with the Commission upon the completion 
of this group's efforts. As the Commission is awaiting input from the 
AISP.4-HAC working group, the Commission is taking no action in this 
Second Report and Order. The Commission will further consider this 
issue as part of the 2010 review.

E. Display Screens

    55. Background. The Notice noted that the Technology Access Program 
of Gallaudet University had pointed out that the display screens on 
smart phones emit electromagnetic energy that may interfere with the 
operation of hearing aids. It therefore invited comment on this issue, 
including whether any measures are appropriate to promote the 
deployment of phones that enable users to turn off their screens.
    56. Discussion. The Commission finds that the existing record does 
not establish a need for Commission action at this time. The Commission 
will seek further comment on this issue in the 2010 review.

V. Procedural Matters

A. Final Regulatory Flexibility Analysis

    57. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA),\1\ the Federal Communications Commission (Commission) 
included an Initial Regulatory Flexibility Analysis (IRFA) of the 
possible significant economic impact on a substantial number of small 
entities of the policies and rules considered in the Notice in WT 
Docket No. 07-250.\2\ The Commission sought written public comment on 
the Notice in this docket, including comment on the IRFA. This Final 
Regulatory Flexibility Analysis (FRFA) conforms to the RFA.
---------------------------------------------------------------------------

    \1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996).
    \2\ Amendment of the Commission's Rules Governing Hearing Aid-
Compatible Mobile Handsets, WT Docket No. 07-250, Section 68.4(a) of 
the Commission's Rules Governing Hearing Aid Compatible Telephones, 
WT Docket No. 01-309, Petition of American National Standards 
Institute Accredited Standards Committee C63 (EMC) ANSI ASC 
C63[supreg], Notice of Proposed Rulemaking, 22 FCC Rcd 19760 (2007) 
(Notice).
---------------------------------------------------------------------------

1. Need for, and Objectives of, the Proposed Rules
    58. In the Second Report and Order, the Commission makes several 
changes to its existing hearing aid compatibility requirements so that 
they will continue effectively to ensure in an evolving marketplace of 
new technologies and services that consumers with hearing loss are able 
to access wireless communications services through a wide selection of 
handsets without experiencing disabling interference or other technical 
obstacles. First, the Commission provides that multi-band and multi-
mode handsets that meet hearing aid compatibility requirements over all 
air interfaces and frequency bands for which technical standards have 
been established, but that also accommodate voice operations for which 
standards do not exist, may be counted as hearing aid-compatible, 
provided consumers are informed that they have been tested for the 
operations for which there are not standards. This rule change extends 
to all such handsets the same regulatory regime that currently applies 
to handsets that incorporate Wi-Fi capability, and it ensures that 
consumers will have the information they need to best evaluate how a 
handset will operate with their hearing aids. In order to further 
ensure that consumers are provided with consistent and sufficient 
information, the Commission also prescribes specific language to be 
used in the disclosure.
    59. Second, the Commission refines the de minimis exception in its 
existing rule so that companies that are not small entities will be 
required to offer at least one hearing aid-compatible model after a 
two-year initial period. Manufacturers subject to this rule will also 
be required to offer at least one new model that is hearing aid-
compatible for acoustic coupling every other calendar year. The 
Commission thereby helps ensure that people with hearing loss will have 
access to new and popular models, while continuing to protect the 
ability of small companies to compete and to foster innovation by new 
entrants. Further, in recognition of specific challenges that this rule 
change will impose for handsets operating over the legacy GSM air 
interface in the 1900 MHz band, the Commission permits companies that 
will no longer qualify for the de minimis exception under this rule 
change to meet hearing aid compatibility requirements by installing 
software that enables customers to reduce the power output by a limited 
amount for such operations.
    60. Third, the Commission extends the hearing aid-compatible 
handset deployment requirements applicable to manufacturers to include 
handsets distributed by the manufacturer through channels other than 
service providers. This action ensures that consumers will continue to 
experience the benefits of hearing aid compatibility as innovative 
business plans give rise to a diversity of distribution channels.
2. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA
    61. No comments specifically addressed the IRFA. Nonetheless, small 
entity issues raised in comments are addressed in this FRFA in Sections 
D and E.
3. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Would Apply
    62. The RFA directs agencies to provide a description of, and where 
feasible, an estimate of the number of small entities that may be 
affected by

[[Page 54517]]

proposed rules, if adopted.\3\ The RFA generally defines the term 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' \4\ In addition, the term ``small business'' has the 
same meaning as the term ``small business concern'' under the Small 
Business Act.\5\ A ``small business concern'' is one which: (1) Is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
Small Business Administration (``SBA'').\6\
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    \3\ 5 U.S.C. 604(a)(3).
    \4\ 5 U.S.C. 601(6).
    \5\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in the Small Business Act, 15 U.S.C. 
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency, after consultation with 
the Office of Advocacy of the Small Business Administration and 
after opportunity for public comment, establishes one or more 
definitions of such term which are appropriate to the activities of 
the agency and publishes such definition(s) in the Federal 
Register.''
    \6\ 15 U.S.C. 632.
---------------------------------------------------------------------------

    63. Small Businesses. Nationwide, there are a total of 
approximately 29.6 million small businesses, according to the SBA.\7\
---------------------------------------------------------------------------

    \7\ See SBA, Office of Advocacy, ``Frequently Asked Questions,'' 
http://web.sba.gov/faqs (last visited Jan. 2009).
---------------------------------------------------------------------------

    64. Cellular Licensees. The SBA has developed a small business size 
standard for small businesses in the category ``Wireless 
Telecommunications Carriers (except satellite).'' \8\ Under that SBA 
category, a business is small if it has 1,500 or fewer employees.\9\ 
The census category of ``Cellular and Other Wireless 
Telecommunications'' is no longer used and has been superseded by the 
larger category ``Wireless Telecommunications Carriers (except 
satellite)''. However, since currently available data was gathered when 
``Cellular and Other Wireless Telecommunications'' was the relevant 
category, earlier Census Bureau data collected under the category of 
``Cellular and Other Wireless Telecommunications'' will be used here. 
Census Bureau data for 2002 show that there were 1,397 firms in this 
category that operated for the entire year.\10\ Of this total, 1,378 
firms had employment of 999 or fewer employees, and 19 firms had 
employment of 1,000 employees or more.\11\ Thus, under this category 
and size standard, the majority of firms can be considered small.
---------------------------------------------------------------------------

    \8\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 517210.
    \9\ Id.
    \10\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization),'' Table 5, NAICS code 517212 (issued Nov. 2005).
    \11\ Id. The census data do not provide a more precise estimate 
of the number of firms that have employment of 1,500 or fewer 
employees; the largest category provided is for firms with ``1,000 
employees or more.''
---------------------------------------------------------------------------

    65. Broadband Personal Communications Service. The broadband 
Personal Communications Service (PCS) spectrum is divided into six 
frequency blocks designated A through F, and the Commission has held 
auctions for each block. The Commission has created a small business 
size standard for Blocks C and F as an entity that has average gross 
revenues of less than $40 million in the three previous calendar 
years.\12\ For Block F, an additional small business size standard for 
``very small business'' was added and is defined as an entity that, 
together with its affiliates, has average gross revenues of not more 
than $15 million for the preceding three calendar years.\13\ These 
small business size standards, in the context of broadband PCS 
auctions, have been approved by the SBA.\14\ No small businesses within 
the SBA-approved small business size standards bid successfully for 
licenses in Blocks A and B. There were 90 winning bidders that 
qualified as small entities in the C Block auctions. A total of 93 
``small'' and ``very small'' business bidders won approximately 40 
percent of the 1,479 licenses for Blocks D, E, and F.\15\ On March 23, 
1999, the Commission reauctioned 155 C, D, E, and F Block licenses; 
there were 113 small business winning bidders.\16\
---------------------------------------------------------------------------

    \12\ See Amendment of Parts 20 and 24 of the Commission's 
Rules--Broadband PCS Competitive Bidding and the Commercial Mobile 
Radio Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 7850-
7852 paras. 57-60 (1996); see also 47 CFR 24.720(b).
    \13\ See Amendment of Parts 20 and 24 of the Commission's 
Rules--Broadband PCS Competitive Bidding and the Commercial Mobile 
Radio Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 7852 
para. 60.
    \14\ See 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.
    \15\ FCC News, ``Broadband PCS, D, E and F Block Auction 
Closes,'' No. 71744 (rel. Jan. 14, 1997).
    \16\ See ``C, D, E, and F Block Broadband PCS Auction Closes,'' 
public notice, 14 FCC Rcd 6688 (WTB 1999).
---------------------------------------------------------------------------

    66. On January 26, 2001, the Commission completed the auction of 
422 C and F Block PCS licenses in Auction 35.\17\ Of the 35 winning 
bidders in this auction, 29 qualified as ``small'' or ``very small'' 
businesses. Subsequent events concerning Auction 35, including judicial 
and agency determinations, resulted in a total of 163 C and F Block 
licenses being available for grant. In 2005, the Commission completed 
an auction of 188 C block licenses and 21 F block licenses in Auction 
58. There were 24 winning bidders for 217 licenses.\18\ Of the 24 
winning bidders, 16 claimed small business status and won 156 licenses. 
In 2007, the Commission completed an auction of 33 licenses in the A, 
C, and F Blocks in Auction 71.\19\ Of the 14 winning bidders, six were 
designated entities.\20\ In 2008, the Commission completed an auction 
of 20 Broadband PCS licenses in the C, D, E and F Block licenses in 
Auction 78.\21\
---------------------------------------------------------------------------

    \17\ See ``C and F Block Broadband PCS Auction Closes; Winning 
Bidders Announced,'' public notice, 16 FCC Rcd 2339 (2001).
    \18\ See ``Broadband PCS Spectrum Auction Closes; Winning 
Bidders Announced for Auction No. 58,'' Public Notice, 20 FCC Rcd 
3703 (2005).
    \19\ See ``Auction of Broadband PCS Spectrum License Closes; 
Winning Bidders Announced for Auction No. 71,'' public notice, 22 
FCC Rcd 9247 (2007).
    \20\  Id.
    \21\ See 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).
---------------------------------------------------------------------------

    67. Specialized Mobile Radio. The Commission awards ``small 
entity'' bidding credits in auctions for Specialized Mobile Radio (SMR) 
geographic area licenses in the 800 MHz and 900 MHz bands to firms that 
had revenues of no more than $15 million in each of the three previous 
calendar years.\22\ The Commission awards ``very small entity'' bidding 
credits to firms that had revenues of no more than $3 million in each 
of the three previous calendar years.\23\ The SBA has approved these 
small business size standards for the 900 MHz Service.\24\ The 
Commission has held auctions for geographic area licenses in the 800 
MHz and 900 MHz bands. The 900 MHz SMR auction began on December 5, 
1995, and closed on April 15, 1996. Sixty bidders claiming that they 
qualified as small businesses under the $15 million size standard won 
263 geographic area licenses in the 900 MHz SMR band. The 800 MHz SMR 
auction for the upper 200 channels began on October 28, 1997, and was 
completed on December 8, 1997. Ten bidders claiming that they qualified 
as small businesses under the $15 million size standard won 38 
geographic area licenses for the upper 200 channels in the 800 MHz SMR

[[Page 54518]]

band.\25\ A second auction for the 800 MHz band was held on January 10, 
2002 and closed on January 17, 2002 and included 23 licenses. One 
bidder claiming small business status won five licenses.\26\
---------------------------------------------------------------------------

    \22\ 47 CFR 90.814(b)(1).
    \23\ Id.
    \24\ See Letter from Aida Alvarez, Administrator, Small Business 
Administration, to Thomas Sugrue, Chief, Wireless Telecommunications 
Bureau, Federal Communications Commission, dated August 10, 1999.
    \25\ See ``Correction to public notice DA 96-586 `FCC Announces 
Winning Bidders in the Auction of 1,020 Licenses to Provide 900 MHz 
SMR in Major Trading Areas,' '' Public Notice, 18 FCC Rcd 18367 (WTB 
1996).
    \26\ See ``Multi-Radio Service Auction Closes,'' public notice, 
17 FCC Rcd 1446 (WTB 2002).
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    68. The auction of the 1,053 800 MHz SMR geographic area licenses 
for the General Category channels began on August 16, 2000, and was 
completed on September 1, 2000. Eleven bidders that won 108 geographic 
area licenses for the General Category channels in the 800 MHz SMR band 
qualified as small businesses under the $15 million size standard. In 
an auction completed on December 5, 2000, a total of 2,800 Economic 
Area licenses in the lower 80 channels of the 800 MHz SMR service were 
sold. Of the 22 winning bidders, 19 claimed ``small business'' status 
and won 129 licenses. Thus, combining all three auctions, 40 winning 
bidders for geographic licenses in the 800 MHz SMR band claimed status 
as small business.
    69. In addition, there are numerous incumbent site-by-site SMR 
licensees and licensees with extended implementation authorizations in 
the 800 and 900 MHz bands. The Commission does not know how many firms 
provide 800 MHz or 900 MHz geographic area SMR services pursuant to 
extended implementation authorizations, nor how many of these providers 
have annual revenues of no more than $15 million. One firm has over $15 
million in revenues. In addition, the Commission does not know how many 
of these firms have 1,500 or fewer employees. The Commission assumes, 
for purposes of this analysis, that all of the remaining existing 
extended implementation authorizations are held by small entities.
    70. Advanced Wireless Services. In 2008, the Commission conducted 
the auction of Advanced Wireless Services (``AWS'') licenses.\27\ This 
auction, which was designated as Auction 78, offered 35 licenses in the 
AWS 1710-1755 MHz and 2110-2155 MHz bands (``AWS-1''). The AWS-1 
licenses were licenses for which there were no winning bids in Auction 
66. That same year, the Commission completed Auction 78. A bidder with 
attributed average annual gross revenues that exceeded $15 million and 
did not exceed $40 million for the preceding three years (``small 
business'') received a 15 percent discount on its winning bid. A bidder 
with attributed average annual gross revenues that did not exceed $15 
million for the preceding three years (``very small business'') 
received a 25 percent discount on its winning bid. A bidder that had a 
combined total assets of less than $500 million and combined gross 
revenues of less than $125 million in each of the last two years 
qualified for entrepreneur status.\28\ Four winning bidders that 
identified themselves as very small businesses won 17 licenses.\29\ 
Three of the winning bidders that identified themselves as small 
business won five licenses. Additionally, one other winning bidder that 
qualified for entrepreneur status won 2 licenses.
---------------------------------------------------------------------------

    \27\ See AWS-1 and Broadband PCS Procedures Public Notice, 23 
FCC Rcd 7496. Auction 78 also included an auction of Broadband PCS 
licenses.
    \28\ Id. at 7521-22.
    \29\ See ``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, Ten-Day Petition to Deny 
Period'', public notice, 23 FCC Rcd 12749 (2008).
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    71. Rural Radiotelephone Service. The Commission has not adopted a 
size standard for small businesses specific to the Rural Radiotelephone 
Service.\30\ A significant subset of the Rural Radiotelephone Service 
is the Basic Exchange Telephone Radio System (``BETRS'').\31\ In the 
present context, the Commission will use the SBA small business size 
standard applicable to Wireless Telecommunication Carriers (except 
satellite), i.e., an entity employing no more than 1,500 persons.\32\ 
There are approximately 1,000 licensees in the Rural Radiotelephone 
Service, and the Commission estimates that there are 1,000 or fewer 
small entity licensees in the Rural Radiotelephone Service that may be 
affected by the rules and policies adopted herein.
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    \30\ The service is defined in Section 22.99 of the Commission's 
rules, 47 CFR 22.99.
    \31\ BETRS is defined in Sections 22.757 and 22.759 of the 
Commission's rules, 47 CFR 22.757 and 22.759.
    \32\ 13 CFR 121.201, NAICS code 517210.
---------------------------------------------------------------------------

    72. Wireless Communications Services. This service can be used for 
fixed, mobile, radiolocation, and digital audio broadcasting satellite 
uses in the 2305-2320 MHz and 2345-2360 MHz bands. The Commission 
defined ``small business'' for the wireless communications services 
(WCS) auction as an entity with average gross revenues of $40 million 
or less for each of the three preceding years, and a ``very small 
business'' as an entity with average gross revenues of $15 million or 
less for each of the three preceding years.\33\ The SBA has approved 
these definitions.\34\ The Commission auctioned geographic area 
licenses in the WCS service. In the auction, which commenced on April 
15, 1997 and closed on April 25, 1997, there were seven bidders that 
won 31 licenses that qualified as very small business entities, and one 
bidder that won one license that qualified as a small business entity.
---------------------------------------------------------------------------

    \33\ Amendment 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).
    \34\ See 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.
---------------------------------------------------------------------------

    73. Offshore Radiotelephone Service. This service operates on 
several UHF television broadcast channels that are not used for 
television broadcasting in the coastal areas of States bordering the 
Gulf of Mexico.\35\ There is presently one licensee in this service. 
The Commission does not have information whether that licensee would 
qualify as small under the SBA's small business size standard for 
Wireless Telecommunications Carriers (except Satellite) services.\36\ 
Under the SBA small business size standard, a business is small if it 
has 1,500 or fewer employees.\37\
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    \35\ This service is governed by subpart I of part 22 of the 
Commission's rules. See 47 CFR 22.1001-22.1037.
    \36\ 13 CFR 121.201, NAICS code 517210.
    \37\ Id.
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    74. Broadband Radio Service and Educational Broadband Service. The 
Broadband Radio Service (``BRS''), formerly known as the Multipoint 
Distribution Service (``MDS''),\38\ and the Educational Broadband 
Service (``EBS''), formerly known as the Instructional Television Fixed 
Service (``ITFS''),\39\ use 2 GHz band frequencies to transmit video 
programming and provide broadband services to residential

[[Page 54519]]

subscribers.\40\ These services, collectively referred to as ``wireless 
cable,'' were originally designed for the delivery of multichannel 
video programming, similar to that of traditional cable systems, but 
over the past several years licensees have focused their operations 
instead on providing two-way high-speed Internet access services.\41\ 
The Commission estimates that the number of wireless cable subscribers 
is approximately 100,000, as of March 2005. The SBA small business size 
standard for the broad census category of Cable and Other Program 
Distribution, which consists of such entities generating $13.5 million 
or less in annual receipts, appears applicable to MDS and ITFS.\42\ 
Note that the census category of ``Cable and Other Program 
Distribution'' is no longer used and has been superseded by the larger 
category ``Wireless Telecommunications Carriers'' (except satellite). 
This category provides that a small business is a wireless company 
employing no more than 1,500 persons.\43\ However, since currently 
available data was gathered when ``Cable and Other Program 
Distribution'' was the relevant category, earlier Census Bureau data 
collected under the category of ``Cable and Other Program 
Distribution'' will be used here. Other standards also apply, as 
described.
---------------------------------------------------------------------------

    \38\ See 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).
    \39\ See 47 CFR Part 74, subpart I; MDS/ITFS Order, 19 FCC Rcd 
14165 (2004).
    \40\ See Annual Assessment of the Status of Competition in the 
Market for the Delivery of Video Programming, Eleventh Annual 
Report, 20 FCC Rcd 2507, 2565 para. 131 (2006).
    \41\ Id.
    \42\ 13 CFR 121.201, NAICS code 515210.
    \43\ 13 CFR 121.201, NAICS code 517210.
---------------------------------------------------------------------------

    75. The Commission has defined small MDS (now BRS) entities in the 
context of Commission license auctions. In the 1996 MDS auction,\44\ 
the Commission defined a small business as an entity that had annual 
average gross revenues of less than $40 million in the previous three 
calendar years.\45\ This definition of a small entity in the context of 
MDS auctions has been approved by the SBA.\46\ In the MDS auction, 67 
bidders won 493 licenses. Of the 67 auction winners, 61 claimed status 
as a small business. At this time, the Commission estimates that of the 
61 small business MDS auction winners, 48 remain small business 
licensees. In addition to the 48 small businesses that hold BTA 
authorizations, there are hundreds of MDS licensees and wireless cable 
operators that did not receive their licenses as a result of the MDS 
auction and that fall under the former SBA small business size standard 
for Cable and Other Program Distribution.\47\ Information available to 
the Commission indicates that there are approximately 850 of these 
licensees and operators that do not generate revenue in excess of $13.5 
million annually. Therefore, the Commission estimates that there are 
approximately 850 of these small entity MDS (or BRS) providers, as 
defined by the SBA and the Commission's auction rules.
---------------------------------------------------------------------------

    \44\ MDS Auction No. 6 began on November 13, 1995, and closed on 
March 28, 1996. (67 bidders won 493 licenses.)
    \45\ 47 CFR 21.961(b)(1).
    \46\ See 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).
    \47\ Hundreds of stations were licensed to incumbent MDS 
licensees prior to implementation of Section 309(j) of the 
Communications Act of 1934, 47 U.S.C. 309(j). For these pre-auction 
licenses, the applicable standard is SBA's small business size 
standard for ``Cable and Other Program Distribution'' (annual 
receipts of $13.5 million or less). See 13 CFR 121.201, NAICS code 
515210.
---------------------------------------------------------------------------

    76. Educational institutions are included in this analysis as small 
entities; however, the Commission has not created a specific small 
business size standard for ITFS (now EBS).\48\ The Commission estimates 
that there are currently 2,452 EBS licenses, held by 1,524 EBS 
licensees, and all but 100 of the licenses are held by educational 
institutions. Thus, the Commission estimates that at least 1,424 EBS 
licensees are small entities.
---------------------------------------------------------------------------

    \48\ In addition, the term ``small entity'' under SBREFA applies 
to small organizations (nonprofits) and to small governmental 
jurisdictions (cities, counties, towns, townships, villages, school 
districts, and special districts with populations of less than 
50,000). 5 U.S.C. 601(4)-(6). The Commission does not collect annual 
revenue data on EBS licensees.
---------------------------------------------------------------------------

    77. Government Transfer Bands. The Commission adopted small 
business size standards for the unpaired 1390-1392 MHz, 1670-1675 MHz, 
and the paired 1392-1395 MHz and 1432-1435 MHz bands.\49\ Specifically, 
with respect to these bands, the Commission defined an entity with 
average annual gross revenues for the three preceding years not 
exceeding $40 million as a ``small business,'' and an entity with 
average annual gross revenues for the three preceding years not 
exceeding $15 million as a ``very small business.'' \50\ SBA has 
approved these small business size standards for the aforementioned 
bands.\51\ Correspondingly, the Commission adopted a bidding credit of 
15 percent for ``small businesses'' and a bidding credit of 25 percent 
for ``very small businesses.'' \52\ This bidding credit structure was 
found to have been consistent with the Commission's schedule of bidding 
credits, which may be found at Section 1.2110(f)(2) of the Commission's 
rules.\53\ The Commission found that these two definitions will provide 
a variety of businesses seeking to provide a variety of services with 
opportunities to participate in the auction of licenses for this 
spectrum and will afford such licensees, who may have varying capital 
costs, substantial flexibility for the provision of services.\54\ The 
Commission noted that it had long recognized that bidding preferences 
for qualifying bidders provide such bidders with an opportunity to 
compete successfully against large, well-financed entities.\55\ The 
Commission also noted that it had found that the use of tiered or 
graduated small business definitions is useful in furthering its 
mandate under Section 309(j) to promote opportunities for and 
disseminate licenses to a wide variety of

[[Page 54520]]

applicants.\56\ An auction for one license in the 1670-1674 MHz band 
commenced on April 30, 2003 and closed the same day. One license was 
awarded. The winning bidder was not a small entity.
---------------------------------------------------------------------------

    \49\ See Amendments to Parts 1, 2, 27 and 90 of the Commission's 
Rules to License Services in the 216-220 MHz, 1390-1395 MHz, 1427-
1429 MHz, 1429-1432 MHz, 1432-1435 MHz, 1670-1675 MHz, and 2385-2390 
MHz Government Transfer Bands, 17 FCC Rcd 9980 (2002) (Government 
Transfer Bands Service Rules Report and Order).
    \50\ See 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.
    \51\ See Letter from Hector V. Barreto, Administrator, Small 
Business Administration, to Margaret W. Wiener, Chief, Auctions and 
Industry Analysis Division, Wireless Telecommunications Bureau, 
Federal Communications Commission, dated Jan. 18, 2002.
    \52\ Such bidding credits are codified for the unpaired 1390-
1392 MHz, paired 1392-1395 MHz, and the paired 1432-1435 MHz bands 
in 47 CFR 27.807. Such bidding credits are codified for the unpaired 
1670-1675 MHz band in 47 CFR 27.906.
    \53\ In the Part 1 Third Report and Order, the Commission 
adopted a standard schedule of bidding credits, the levels of which 
were developed based on its auction experience. Part 1 Third Report 
and Order, 13 FCC Rcd at 403-04 para. 47; see also 47 CFR 
1.2110(f)(2).
    \54\ See Service Rules Notice, 17 FCC Rcd at 2550-51 para. 145.
    \55\ See, e.g., Revision of Part 22 and Part 90 of the 
Commission's Rules to Facilitate Future Development of Paging 
Systems; Implementation of Section 309(j) of the Communications 
Act--Competitive Bidding, WT Docket No. 96-18, PR Docket No. 93-253, 
Memorandum Opinion and Order on Reconsideration and Third Report and 
Order, 14 FCC Rcd 10030, 10091 para. 112 (1999).
    \56\ 47 U.S.C. 309(j)(3)(B), (4)(C)-(D). The Commission will 
also not adopt special preferences for entities owned by minorities 
or women, and rural telephone companies. The Commission did not 
receive any comments on this issue, and it does not have an adequate 
record to support such special provisions under the current 
standards of judicial review. See Adarand Constructors v. 
Pe[ntilde]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).
---------------------------------------------------------------------------

    78. Radio and Television Broadcasting and Wireless Communications 
Equipment Manufacturing. The Census Bureau defines this category as 
follows: ``This industry comprises establishments primarily engaged in 
manufacturing radio and television broadcast and wireless 
communications equipment. Examples of products made by these 
establishments are: Transmitting and receiving antennas, cable 
television equipment, GPS equipment, pagers, cellular phones, mobile 
communications equipment, and radio and television studio and 
broadcasting equipment.'' The SBA has developed a small business size 
standard for firms in this category, which is: All such firms having 
750 or fewer employees. \57\ According to Census Bureau data for 2002, 
there were a total of 1,041 establishments in this category that 
operated for the entire year. Of this total, 1,010 had employment of 
less than 500, and an additional 13 had employment of 500 to 999. Thus, 
under this size standard, the majority of firms can be considered 
small.
---------------------------------------------------------------------------

    \57\ 13 CFR 121.201, NAICS code 334220.
---------------------------------------------------------------------------

4. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities
    79. The Commission adopts several reporting, recordkeeping, and 
other compliance requirements which could affect small entities. First, 
as an interim measure, the Commission extends to all handsets that 
incorporate new frequency bands and air interfaces usable for voice 
services other than Wi-Fi the same counting and disclosure rules that 
currently apply to handsets with Wi-Fi. In other words, a handset that 
meets hearing aid compatibility requirements over all air interfaces 
and frequency bands for which technical standards have been 
established, but that also accommodates voice operations for which 
standards do not exist, may be counted as hearing aid-compatible 
provided consumers are clearly informed that it has not been tested for 
the operations for which there are not standards.
    80. The Commission further requires that for newly manufactured 
handsets covered by this rule, the following disclosure language be 
used: ``This phone has been tested and rated for use with hearing aids 
for some of the wireless technologies that it uses. However, there may 
be some newer wireless technologies used in this phone that have not 
been tested yet for use with hearing aids. It is important to try the 
different features of this phone thoroughly and in different locations, 
using your hearing aid or cochlear implant, to determine if you hear 
any interfering noise. Consult your service provider or phone retailer 
about its return and exchange policies. Consult your service provider 
or the manufacturer of this phone for information on hearing aid 
compatibility. If you have questions about return or exchange policies, 
consult your service provider or phone retailer.'' The Commission 
concludes that a uniform text will ensure that consumers are provided 
with consistent and sufficient information. However, handsets that are 
already on the market with other disclosure language that complies with 
the current rule will not be required to replace this with the newly 
prescribed language. This disclosure rule will apply to all handsets 
that operate in part over an air interface or frequency band that is 
not covered by the current hearing aid compatibility technical standard 
until the date that rules adopting any new standard become effective.
    81. In order to ensure that consumers who use hearing aids and 
cochlear implants have access to a variety of phones, while preserving 
competitive opportunities for small companies as well as opportunities 
for innovation and investment, the Commission modifies the de minimis 
rule as applied to companies that are not small entities. Specifically, 
the Commission decides that beginning two years after it offers its 
first handset model over an air interface, a manufacturer or service 
provider that is not a small entity must offer at least one model that 
is rated M3 or higher and at least one model that is rated T3 or higher 
if it offers between one and three total handset models. Consistent 
with the SBA size standards, a ``small entity'' is defined as a service 
provider that, together with its parent, subsidiary, or affiliate 
companies under common ownership or control, has 1500 or fewer 
employees or a manufacturer that, together with its parent, subsidiary, 
or affiliate companies under common ownership or control, has 750 or 
fewer employees. In order to maintain parity and to allow entities that 
have been relying on the de minimis rule a reasonable period for 
transition, this obligation will become effective for manufacturers and 
service providers that offer one or two handset models over an air 
interface two years after the latest of the following: The date the 
manufacturer or service provider began offering handsets over the air 
interface, the date the amended rule is published in the Federal 
Register, the date a hearing aid compatibility technical standard is 
adopted for the relevant operation, or the date a previously small 
entity no longer meets our small entity definition. The Commission also 
revises the ``refresh'' rule to require manufacturers that are not 
small entities that offer two models over an air interface, after the 
first two years, to introduce at least one new model rated M3 or higher 
every other year.
    82. In recognition of the special technical challenges of meeting 
hearing aid compatibility technical standards for handsets with certain 
desirable form factors operating over the legacy 2G GSM air interface 
in the 1900 MHz band, the Commission permits companies that would come 
under the amended de minimis rule but for their size to satisfy the 
hearing aid-compatible handset deployment requirement for GSM using a 
handset that allows the customer to reduce the maximum output power for 
GSM operations in the 1900 MHz band by up to 2.5 decibels, except for 
emergency calls to 911, in order to meet the standard for radio 
frequency interference reduction. Wherever a manufacturer or service 
provider provides the hearing aid compatibility rating for such a 
handset, it shall indicate that user activation of a special mode is 
necessary to meet the hearing aid compatibility standard. In addition, 
the handset manual or product insert must explain how to activate the 
special mode and that doing so may result in a diminution of coverage. 
These actions are taken to ensure that consumers who use hearing aids 
and cochlear implants have access to a variety of phones and are 
adequately informed about the functionality and the limitations of the 
handsets, while preserving competitive opportunities for small 
companies as well as opportunities for innovation and investment.
    83. Currently, wireless handsets are increasingly distributed 
through channels other than service providers. The Commission therefore 
amends

[[Page 54521]]

Section 20.19(c) and (d) to apply the hearing aid-compatible handset 
deployment benchmarks to all handsets that a wireless handset 
manufacturer produces for distribution in the United States that are 
within the scope of Section 20.19(a) of the rule. Manufacturers will 
have until 12 months from publication of the rule in the Federal 
Register to come into compliance with it. The Commission clarifies that 
handsets covered by this rule include handsets that manufacturers sell 
to businesses for distribution to their employees. This rule change 
will address new handset manufacturer distribution models in existing 
networks and ensure that wireless handsets will be covered by the 
Commission's hearing aid compatibility obligations regardless of 
distribution and sales channels. The Commission finds that this rule 
change will serve the public interest as a better and more proactive 
approach to ensure the availability of hearing aid-compatible handsets 
in the developing handset marketplace.
5. Steps Proposed To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered
    84. The RFA requires an agency to describe in the IRFA any 
significant alternatives that it has considered in reaching its 
proposed approach, which may include (among others) the following four 
alternatives: (1) The establishment of differing compliance or 
reporting requirements or timetables that take into account the 
resources available to small entities; (2) the clarification, 
consolidation, or simplification of compliance or reporting 
requirements under the rule for small entities; (3) the use of 
performance, rather than design, standards; and (4) an exemption from 
coverage of the rule, or any part thereof, for small entities.\58\ The 
Commission considered these alternatives with respect to all of the 
requirements that it is imposing on small entities in the Second Report 
and Order, and this FRFA incorporates by reference all discussion in 
the Second Report and Order that considers the impact on small entities 
of the rules adopted by the Commission. In addition, the Commission's 
consideration of those issues as to which the impact on small entities 
was specifically discussed in the record is summarized below:
---------------------------------------------------------------------------

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

    85. Until such time as any revision of the hearing aid 
compatibility technical standard may be adopted by the Commission, the 
Commission extends to all handsets that incorporate frequency bands and 
air interfaces other than Wi-Fi usable for voice services for which no 
hearing aid compatibility standards exist the same counting and 
disclosure rules that currently apply to handsets with Wi-Fi 
capability. The disclosure requirement is necessary in order to count 
these handsets as hearing aid-compatible without misleading consumers, 
and therefore no exception is appropriate for small entities. The 
Commission further prescribes uniform disclosure language to ensure 
that consumers are provided with consistent and sufficient information. 
This uniform language will also streamline and simplify the disclosure 
process, thereby easing the burden on regulated entities. However, 
handsets that are already on the market bearing another label that 
complies with the current rule will not be required to replace this 
label with the newly prescribed language. This transitional exception 
will ease the regulatory burden on small service providers that may 
have a slower turnover of their inventory.
    86. The Commission modifies the de minimis rule as applied to 
companies that are not small entities. Specifically, the Commission 
decides that beginning two years after it offers its first handset 
model over an air interface, a manufacturer or service provider that is 
not a small entity, as defined herein, must offer at least one model 
that is rated M3 or higher and at least one model that is rated T3 or 
higher if it offers between one and three total handset models. The 
Commission also revises the ``refresh'' rule to require manufacturers 
that are not small entities that offer two models over an air 
interface, after the first two years, to introduce at least one new 
model rated M3 or higher every other year. Consistent with the SBA size 
standards, a ``small entity'' is defined as a service provider that, 
together with its parent, subsidiary, or affiliate companies under 
common ownership or control, has 1500 or fewer employees or a 
manufacturer that, together with its parent, subsidiary, or affiliate 
companies under common ownership or control, has 750 or fewer 
employees. In order to minimize the economic impact on small 
manufacturers and service providers and preserve their opportunity to 
compete in the market and innovate, the existing de minimis rule will 
continue to apply to small entities. In addition, in order to ease the 
burden of transition, the new rule will become applicable to a 
manufacturer or service provider two years after the latest of: The 
date the manufacturer or service provider began offering handsets over 
the air interface, the date the amended rule is published in the 
Federal Register, the date a hearing aid compatibility technical 
standard is adopted for the relevant operation, or the date a 
previously small entity no longer meets our small entity definition.
    87. In recognition of the special technical challenges of meeting 
hearing aid compatibility technical standards for handsets with certain 
desirable form factors operating over the legacy 2G GSM air interface 
in the 1900 MHz band, the Commission permits companies that would come 
under the amended de minimis rule but for their size to satisfy the 
hearing aid-compatible handset deployment requirement for GSM using a 
handset that allows the customer, except for emergency calls to 911, to 
reduce the maximum output power for GSM operations in the 1900 MHz band 
in order to meet the RF interference standard. However, wherever a 
manufacturer or service provider provides the hearing aid compatibility 
rating for such a handset, it shall indicate that user activation of a 
special mode is necessary to meet the hearing aid compatibility 
standard. In addition, the handset manual or product insert must 
explain how to activate the special mode and that doing so may result 
in a diminution of coverage. These actions will reduce the regulatory 
burden on small businesses that do not come under the de minimis rule 
by making it easier to satisfy hearing aid compatibility requirements 
for this class of handsets, while ensuring that consumers who use 
hearing aids and cochlear implants have access to a variety of phones 
and are adequately informed about the functionality and the limitations 
of their handsets.
    88. The Commission amends Section 20.19 to expand its scope for 
manufacturers such that the rule will apply to all covered handsets 
that they manufacture for sale and use in the United States, regardless 
of whether those handsets are offered to service providers, 
intermediaries, businesses for use by their employees, or directly to 
the public. Manufacturers will have until 12 months from publication of 
the rule in the Federal Register to come into compliance with it. The 
Commission finds that this rule change will serve the public interest 
as a better and more proactive approach to ensure the availability of 
hearing aid-compatible handsets in the developing handset marketplace, 
and that no exception to or modification of the rule for small entities 
is appropriate consistent with

[[Page 54522]]

the rule's purpose. The 12-month transition period will ease the burden 
of coming into compliance for small entities.
6. Report to Congress
    89. The Commission will send a copy of the Second Report and Order, 
including this FRFA, in a report to be sent to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act.\59\ In addition, the Commission will send a copy of the Second 
Report and Order, including this FRFA, to the Chief Counsel for 
Advocacy of the SBA. A copy of the Second Report and Order and FRFA (or 
summaries thereof) will also be published in the Federal Register.\60\
---------------------------------------------------------------------------

    \59\ See 5 U.S.C. 801(a)(1)(A).
    \60\ See 5 U.S.C. 604(b).
---------------------------------------------------------------------------

B. Final Paperwork Reduction Act Analysis

    90. The Second Report and Order contains modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13. It will be submitted to the Office of 
Management and Budget (OMB) for review under Section 3507(d) of the 
PRA. OMB, the general public, and other Federal agencies are invited to 
comment on the modified information collection requirements contained 
in this proceeding. In addition, pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4), the Commission sought specific comment on how the 
Commission might further reduce the information collection burden for 
small business concerns with fewer than 25 employees.
    91. In this present document, the Commission has assessed the 
effects of extending to all handsets that incorporate new frequency 
bands and air interfaces for which hearing aid compatibility technical 
standards do not yet exist the same counting and disclosure rules that 
currently apply to handsets with Wi-Fi capability, as well as the 
disclosure requirements associated with modifying the hearing aid 
compatibility technical standards for manufacturers and service 
providers that offer one or two handsets operating over the legacy 2G 
GSM air interface in the 1900 MHz band. The Commission finds that these 
disclosure requirements are necessary to ensure that consumers are 
adequately informed of the underlying measures that, taken as a whole, 
will increase the availability of innovative handsets and reduce the 
burden of complying with the hearing aid compatibility requirements for 
entities including small businesses.

C. Congressional Review Act

    92. The Commission will include a copy of this Second Report and 
Order in a report to be sent to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act, see 5 
U.S.C. 801(a)(1)(A).

D. Accessible Formats

    93. To request materials in accessible formats for people with 
disabilities (Braille, large print, electronic files, audio format), 
send an e-mail to <a href="/cdn-cgi/l/email-protection#1c7a7f7f292c285c7a7f7f327b736a"><span class="__cf_email__" data-cfemail="b9dfdada8c898df9dfdada97ded6cf">[email protected]</span></a> or call the Consumer & Governmental 
Affairs Bureau at 202-418-0530 (voice) or 202-418-0432 (TTY).

VI. Ordering Clauses

    94. It is ordered that, pursuant to the authority of Sections 4(i), 
303(r), and 710 of the Communications Act of 1934, as amended, 47 
U.S.C. 154(i), 303(r), and 610, this Second Report and Order is hereby 
adopted.
    95. It is further ordered that Part 20 of the Commission's Rules, 
47 CFR part 20, is amended as specified in Appendix B, effective 
October 8, 2010, except for the amendments to Section 20.19(f), which 
contain an information collection that is subject to OMB approval.
    96. It is further ordered that the information collection contained 
in this Second Report and Order will become effective following 
approval by the Office of Management and Budget. The Commission will 
publish a document at a later date establishing the effective date.
    97. It is further ordered that the Commission's Consumer 
Information Bureau, Reference Information Center, shall send a copy of 
the Second Report and Order, including the Final Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of the Small Business 
Administration.

List of Subjects in 47 CFR Part 20

    Communications common carriers, Communications equipment, 
Incorporation by reference, and Radio.

Bulah P. Wheeler,
Deputy Manager, Federal Communications Commission.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 20 as follows:

PART 20--COMMERCIAL MOBILE RADIO SERVICES

0
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.


Sec.  20.19  [Amended]

0
2. Amend Sec.  20.19 as follows:
0
a. Redesignate paragraphs (a)(3)(i) through (a)(3)(iv) as (a)(3)(ii) 
through (a)(3)(v);
0
b. Add new paragraph (a)(3)(i);
0
c. Revise paragraph (b) introductory text;
0
d. Revise paragraph (c)(1)(i);
0
e. Add paragraph (c)(1)(ii)(C);
0
f. Revise paragraph (d)(1) introductory text;
0
g. Redesignate paragraph (e)(1) as (e)(1)(i);
0
h. Add paragraphs (e)(1)(ii) and (iii);
0
i. Revise paragraph (f)(2)
0
j. Add paragraph (f)(3); and;
0
k. Revise paragraph (k)(1).


Sec.  20.19  Hearing aid-compatible mobile handsets.

    (a) * * *
    (3) * * *
    (i) Handset refers to a device used in delivery of the services 
specified in paragraph (a)(1) of this section that contains a built-in 
speaker and is typically held to the ear in any of its ordinary uses.
* * * * *
    (b) Hearing aid compatibility; technical standards. A wireless 
handset used for digital CMRS only over the frequency bands and air 
interfaces referenced in paragraph (a)(1) of this section is hearing 
aid-compatible with regard to radio frequency interference or inductive 
coupling if it meets the applicable technical standard(s) set forth in 
paragraphs (b)(1) and (b)(2) of this section for all frequency bands 
and air interfaces over which it operates, and the handset has been 
certified as compliant with the test requirements for the applicable 
standard pursuant to Sec.  2.1033(d) of this chapter. A wireless 
handset that incorporates an air interface or operates over a frequency 
band for which no technical standards are stated in ANSI C63.19-2007 
(June 8, 2007) is hearing aid-compatible if the handset otherwise 
satisfies the requirements of this paragraph.
* * * * *
    (c) * * *
    (1) * * *
    (i) Number of hearing aid-compatible handset models offered. For 
each digital air interface for which it offers wireless handsets in the 
United States or

[[Page 54523]]

imported for use in the United States, each manufacturer of wireless 
handsets must offer handset models that comply with paragraph (b)(1) of 
this section. Prior to September 8, 2011, handset models for purposes 
of this paragraph include only models offered to service providers in 
the United States.
    (A) If it offers four to six models, at least two of those handset 
models must comply with the requirements set forth in paragraph (b)(1) 
of this section.
    (B) If it offers more than six models, at least one-third of those 
handset models (rounded down to the nearest whole number) must comply 
with the requirements set forth in paragraph (b)(1) of this section.
    (ii) * * *
    (C) Beginning September 10, 2012, for manufacturers that together 
with their parent, subsidiary, or affiliate companies under common 
ownership or control, have had more than 750 employees for at least two 
years and that offer two models over an air interface for which they 
have been offering handsets for at least two years, at least one new 
model rated M3 or higher shall be introduced every other calendar year.
* * * * *
    (d) * * *
    (1) Manufacturers. Each manufacturer offering to service providers 
four or more handset models, and beginning September 8, 2011, each 
manufacturer offering four or more handset models, in a digital air 
interface for use in the United States or imported for use in the 
United States must ensure that it offers to service providers, and 
beginning September 8, 2011, must ensurel that it offers, at a minimum, 
the following number of handset models that comply with the 
requirements set forth in paragraph (b)(2) of this section, whichever 
number is greater in any given year.
* * * * *
    (e) * * *
    (1)(i) * * *
    (ii) Notwithstanding paragraph (e)(1)(i) of this section, beginning 
September 10, 2012, manufacturers that have had more than 750 employees 
for at least two years and service providers that have had more than 
1500 employees for at least two years, and that have been offering 
handsets over an air interface for at least two years, that offer one 
or two digital wireless handsets in that air interface in the United 
States must offer at least one handset model compliant with paragraphs 
(b)(1) and (b)(2) of this section in that air interface, except as 
provided in paragraph (e)(1)(iii) of this section. Service providers 
that obtain handsets only from manufacturers that offer one or two 
digital wireless handset models in an air interface in the United 
States, and that have had more than 750 employees for at least two 
years and have offered handsets over that air interface for at least 
two years, are required to offer at least one handset model in that air 
interface compliant with paragraphs (b)(1) and (b)(2) of this section, 
except as provided in paragraph (e)(1)(iii) of this section. For 
purposes of this paragraph, employees of a parent, subsidiary, or 
affiliate company under common ownership or control with a manufacturer 
or service provider are considered employees of the manufacturer or 
service provider. Manufacturers and service providers covered by this 
paragraph must also comply with all other requirements of this section.
    (iii) Manufacturers and service providers that offer one or two 
digital handset models that operate over the GSM air interface in the 
1900 MHz band may satisfy the requirements of paragraph (e)(1)(ii) of 
this section by offering at least one handset model that complies with 
paragraph (b)(2) of this section and that either complies with 
paragraph (b)(1) of this section or meets the following conditions:
    (A) The handset enables the user optionally to reduce the maximum 
power at which the handset will operate by no more than 2.5 decibels, 
except for emergency calls to 911, only for GSM operations in the 1900 
MHz band;
    (B) The handset would comply with paragraph (b)(1) of this section 
if the power as so reduced were the maximum power at which the handset 
could operate; and
    (C) Customers are informed of the power reduction mode as provided 
in paragraph (f)(3) of this section. Manufacturers and service 
providers covered by this paragraph must also comply with all other 
requirements of this section.
* * * * *
    (f) * * *
    (2)(i) Disclosure requirement relating to handsets that operate 
over an air interface or frequency band without hearing aid 
compatibility technical standards. Each manufacturer and service 
provider shall ensure that, wherever it provides hearing aid 
compatibility ratings for a handset that incorporates an air interface 
or operates over a frequency band for which no technical standards are 
stated in ANSI C63.19-2007 (June 8, 2007), it discloses to consumers, 
by clear and effective means (e.g., inclusion of call-out cards or 
other media, revisions to packaging materials, supplying of information 
on Web sites) that the handset has not been rated for hearing aid 
compatibility with respect to that operation. This disclosure shall 
include the following language:

    This phone has been tested and rated for use with hearing aids 
for some of the wireless technologies that it uses. However, there 
may be some newer wireless technologies used in this phone that have 
not been tested yet for use with hearing aids. It is important to 
try the different features of this phone thoroughly and in different 
locations, using your hearing aid or cochlear implant, to determine 
if you hear any interfering noise. Consult your service provider or 
the manufacturer of this phone for information on hearing aid 
compatibility. If you have questions about return or exchange 
policies, consult your service provider or phone retailer.

    (ii) However, service providers are not required to include this 
language in the packaging material for handsets that incorporate a Wi-
Fi air interface and that were obtained by the service provider before 
March 8, 2011, provided that the service provider otherwise discloses 
by clear and effective means that the handset has not been rated for 
hearing aid compatibility with respect to Wi-Fi operation.
    (3) Disclosure requirement relating to handsets that allow the user 
to reduce the maximum power for GSM operation in the 1900 MHz band. 
Handsets offered to satisfy paragraph (e)(1)(iii) of this section shall 
be labeled as meeting an M3 rating. Each manufacturer and service 
provider shall ensure that, wherever this rating is displayed, it 
discloses to consumers, by clear and effective means (e.g., inclusion 
of call-out cards or other media, revisions to packaging materials, 
supplying of information on Web sites), that user activation of a 
special mode is necessary to meet the hearing aid compatibility 
standard. In addition, each manufacturer or service provider shall 
ensure that the device manual or a product insert explains how to 
activate the special mode and that doing so may result in a reduction 
of coverage.
* * * * *
    (k) Delegation of rulemaking authority. (1) The Chief of the 
Wireless Telecommunications Bureau and the Chief of the Office of 
Engineering and Technology are delegated authority, by notice-and-
comment rulemaking, to issue an order amending this section to the 
extent necessary to adopt technical standards for additional frequency 
bands and/or air interfaces upon the establishment of such standards by 
ANSI Accredited Standards Committee C63<SUP>TM</SUP>, provided that the 
standards do

[[Page 54524]]

not impose with respect to such frequency bands or air interfaces 
materially greater obligations than those imposed on other services 
subject to this section. Any new obligations on manufacturers and Tier 
I carriers pursuant to paragraphs (c) through (i) of this section as a 
result of such standards shall become effective no less than one year 
after release of the order adopting such standards and any new 
obligations on other service providers shall become effective no less 
than 15 months after the release of such order, except that any new 
obligations on manufacturers and service providers subject to paragraph 
(e)(1)(ii) of this section shall become effective no less than two 
years after the release of such order.
* * * * *
[FR Doc. 2010-22253 Filed 9-7-10; 8:45 am]
BILLING CODE 6712-01-P


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