Improvements to Benchmarks and Related Requirements Governing Hearing Aid-Compatible Mobile Handsets

AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule.

SUMMARY:

In this document, the Federal Communications Commission (Commission) seeks comment on revisions to the Commission's wireless hearing aid compatibility rules. The Commission proposes to adopt a consensus approach developed cooperatively by consumer advocates and industry trade associations, which would require manufacturers and service providers to increase the percentage of new wireless handset models that are hearing aid compatible over time, culminating in a system in which all wireless handset models are accessible to people with hearing loss.

DATES:

Interested parties may file comments on or before January 14, 2016, and reply comments on or before January 29, 2016.

ADDRESSES:

You may submit comments, identified by WT Docket No. 15-285; FCC 15-155, by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov . Follow the instructions for submitting comments.
• Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/ . Follow the instructions for submitting comments.
• Mail: Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although the Commission continues to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• People with Disabilities: Contact the Commission to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: fcc504@fcc.gov or phone: 202-418-0530 or TTY: 202-418-0432.

For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

In addition to filing comments with the Secretary, a copy of any comments on the Paperwork Reduction Act information collection modifications proposed herein should be submitted to the Commission via email to PRA@fcc.gov and to Nicholas A. Fraser, Office of Management and Budget, via email to Nicholas_A._Fraser@omb.eop.gov or via fax at 202-395-5167.

FOR FURTHER INFORMATION CONTACT:

For further information regarding the NPRM, contact Michael Rowan, Wireless Telecommunications Bureau, (202) 418-1883, email Michael.Rowan@fcc.gov, or Eli Johnson, Wireless Telecommunications Bureau (202) 418-1395, email Eli.Johnson@fcc.gov.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM) in WT Docket No. 15-285; FCC 15-155, adopted November 19, 2015, and released on November 20, 2015. This summary should be read with its companion document, the Fourth Report and Order summary published elsewhere in this issue of the Federal Register. The full text of the NPRM 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 email FCC@BCPIWEB.com. Additionally, the complete item is available on the Commission's Web site at http://www.fcc.gov .

Synopsis of the Notice of Proposed Rulemaking

I. Introduction

1. In this NPRM, the Commission seeks comment on potential revisions to the Commission's part 20 rules governing wireless hearing aid compatibility. The Commission initiates this proceeding to develop a record on an innovative and groundbreaking proposal, advanced collaboratively by industry and consumer groups, to replace the current fractional regime with the staged adoption of a system under which all covered wireless handsets will be hearing aid-compatible. The Commission proposes to adopt this consensus approach, which recognizes that the stakeholders themselves are best positioned to craft a regime that ensures full accessibility while protecting incentives to innovate and invest.

II. Background

2. The Joint Consensus Proposal provides that within two years of the effective date of the adoption of the new benchmark rules, 66 percent of wireless handset models offered to consumers should be compliant with the Commission's acoustic coupling radio frequency interference (M rating) and inductive coupling (T rating) requirements. The proposal provides that within five years of the effective date of new rules adopted, 85 percent of wireless handset models offered to consumers should be compliant with the Commission's M and T ratings.

3. The proposal provides that these new benchmarks should apply to manufacturers and carriers that offer six or more digital wireless handset models in an air interface, except that Tier I and Non-Tier I carriers would receive six months and eighteen months of additional compliance time, respectively, to account for availability of handsets and inventory turn-over rates. The proposal states that the existing de minimis exception should continue to apply for manufacturers and carriers that offer three or fewer handset models in an air interface and that manufacturers and carriers that offer four or five digital wireless handset models in an air interface should ensure that at least two of those handsets models are compliant with our M and T rating requirements. In addition, the proposal provides that these benchmarks should only be applicable if testing protocols are available for a particular air interface.

4. In addition to these two-year and five-year benchmarks, the proposal provides that “[t]he Commission should commit to pursue that 100% of wireless handsets offered to consumers should be compliant with [the M and T rating requirements] within eight years.” The Joint Consensus Proposal conditions the transition to 100 percent, however, on a Commission determination within seven years of the rules' effective date that reaching the 100 percent goal is “achievable.” The Joint Consensus Proposal prescribes the following process for making that determination:

[The Commission shall create] a task force, including all stakeholders, identifying questions for exploration in year four after the effective date that the benchmarks described above are established. After convening, the stakeholder task force will issue a report to the Commission within two years.

The Commission, after review and receipt of the report described above, will determine whether to implement 100 percent compliance with [the M and T ratings requirements] based on concrete data and information about the technical and market conditions involving wireless handsets and the landscape of hearing improvement technology collected in years four and five. Any new benchmarks resulting from this determination, including 100 percent compliance, would go into effect no less than twenty-four months after the Commission's determination.

Consumer groups and the Wireless Industry shall work together to hold meetings going forward to ensure that the process will include all stakeholders: including at a minimum, consumer groups, independent research and technical advisors, wireless industry policy and technical representatives, hearing aid manufacturers and Commission representatives.

III. Discussion

5. The Commission proposes to adopt the general approach discussed in the Joint Consensus Proposal, including the staged benchmark revisions, the Commission's determination of achievability, and the process for moving to a 100 percent compliance standard, and the Commission seeks comment on this proposal and its various components. The Commission recognizes that the Joint Consensus Proposal reflects the intensive efforts and commitment of consumer and industry stakeholders to develop an approach that expands access for consumers with hearing loss while preserving the flexibility that allows innovation to flourish. The Commission notes that the current hearing aid compatibility rules, including the current benchmarks, are also based on a consensus proposal developed and submitted in 2007 by representatives of the wireless industry and consumers with hearing loss. In substantially adopting the terms of that proposal, the Commission found that broad multi-stakeholder support “testifie[d] to the success of the proffered proposals in meeting the goals of the Hearing Aid Compatibility Act, and in addressing the concerns of manufacturers and service providers while still advancing the interests of consumers with hearing loss in having greater access to advanced digital wireless communications.” Given the success of the previous consensus proposal, and recognizing that the Joint Consensus Proposal was generated by the very stakeholders that it will impact most directly, the Commission considers favorably the Joint Consensus Proposal—particularly to the extent that it moves toward a 100 percent hearing aid compatibility requirement without discouraging or impairing the development of improved technology. The Commission also believes that an approach developed through consensus among the relevant stakeholders may yield outcomes that most effectively leverage innovative technological solutions.

6. Accordingly, below, the Commission seeks comment on the merits of the Joint Consensus Proposal, both with respect to its overall effectiveness in fulfilling Congress's intent to ensure access to telephones for people with hearing loss under Section 710 of the Communications Act as amended by the CVAA, and more specifically with respect to its various components as these have been presented jointly by the consumer and industry stakeholders. The Commission also seeks comment on several related matters.

1. The Joint Consensus Proposal

7. Benchmarks. First, the Commission asks commenters to address the timeframes that the proposal describes as well as the process for the Commission's determination of achievability. Are the proposed new benchmarks appropriate for all covered entities and handsets? How will these benchmarks effectively meet the needs of consumers while protecting innovation and competition for current and future operations? The Commission asks commenters who recommend different benchmarks for small entities, for certain technologies or services, or for meeting the standards for acoustic coupling and inductive coupling to explain their reasoning in detail, along with justifications for why their preferred alternatives would be better than the approach contained in the Joint Consensus Proposal, taking into consideration the purposes and goals of Section 710. The Joint Consensus Proposal provides that the Commission should commit to pursuing a goal of 100 percent compatibility within eight years of the effective date at the time the revised benchmarks are established. The Commission seeks comment on this eight-year period. Would a longer or shorter transition period be more appropriate and, if so, why?

8. De minimis exception to two- and five-year benchmarks. The proposal recommends that the existing de minimis exception to the benchmarks should continue to apply for manufacturers and carriers that offer three or fewer handset models in an air interface and that the rule should further provide that manufacturers and carriers that offer four or five digital wireless handset models in an air interface should ensure that at least two of those handsets models are compliant with sections 20.19(b)(1) and (b)(2). The Commission seeks comment on these proposed exceptions to the new benchmarks.

9. Determination of Achievability. The Commission seeks comment on the proposed process for determining achievability. For example, in determining achievability, should the Commission limit itself to assessing information and data collected in years four and five, or should it also take account of more recent data and information that may be available at that time? Should the Commission seek public comment in connection with reaching the achievability determination? Are there any aspects of the Joint Consensus Proposal's benchmarks, timing, and achievability determination that the Commission should not adopt? Should the Commission supplement them with any additional requirements or considerations? Regarding the proposed task force, the Commission seeks comment on how and through what process or mechanism the Commission should establish the task force, on whether the task force should be established without delay even if its primary functions would not begin until year four, and on how the task force should be structured and its membership determined, including how to ensure that “all stakeholders” are adequately represented. The Commission also seeks comment on which issues or questions the Commission should ask the task force to explore, on the scope and content of the task force's report, and on the processes or rules, if any, that should govern its activities.

10. The Commission also seeks comment on how the Commission should determine achievability, including the appropriate substantive definition, standard, or framework to govern the Commission's determination. For example, should the determination of achievability be based on relevant factors specified in Section 710, e.g., technological feasibility, marketability, and impact on the use and development of technology? The Commission notes that the CVAA contains a specific definition of achievability that applies in the context of sections 716 and 718 of the Act. Specifically, Section 716(g) of the Act defines the term “achievable” to mean “with reasonable effort or expense, as determined by the Commission.” Section 716 requires providers of advanced communications services and manufacturers of equipment used for those services to make their offerings accessible to and usable by individuals with disabilities, unless not achievable. Section 718 requires manufacturers of telephones used with public mobile services to ensure that web browsers on those devices are accessible to and usable by individuals who are blind or have a visual impairment, unless doing so is not achievable. Given that these sections similarly contain mandates for equipment accessibility by people with disabilities, is it appropriate to apply the CVAA achievability definition here as well? Or would an alternative be preferable in the context of the Joint Consensus Proposal?

11. In considering whether the 100 percent goal is achievable, should the Commission consider innovative approaches, including standards or technologies that are different from the currently applicable ANSI standard, that can achieve telephone access for consumers with hearing loss? For example, Apple has explained that it “work[ed] outside the existing Part 20 framework to advance its goal of dramatically improving the user experience for individuals with hearing loss,” and that it developed a new hearing aid platform that relies on Bluetooth® technology. The Commission urges stakeholders to think broadly in developing alternative approaches, whether they build on Apple's experience or other efforts, as the Commission is confident that creativity and innovation can significantly advance the interests of consumers with hearing loss without hobbling wireless innovation. The Commission is particularly interested in commenters' insights regarding alternative compliance approaches that can, in a technologically neutral manner, ensure that devices are fully accessible for users with hearing loss.

2. Stakeholders' Suggested Requests for Comment

12. The Joint Proposal itself recommends that the Commission seek comment on various issues related to modifying the benchmark regime. In particular, it suggests that the Commission seek comment on the following issues, which it now does:

The Commission should seek comment in the NPRM on how the FCC's rules should be modified to ensure manufacturers and service providers meet the new benchmarks while preserving the ability to offer innovative wireless handsets in a rapidly changing market. For example, the Commission should seek comment on whether wireless handsets can be deemed compliant with the HAC rules through means other than by measuring RF interference and inductive coupling. In addition, the Commission should seek comment on which compliance processes, such as waivers, should be modified to accommodate innovation and carriers', especially rural and regional carriers', handset inventories and turn-over rates, within a compliance regime with the enhanced benchmarks described above. The Commission also should seek comment on whether disclosures to consumers could serve as a means of compliance for wireless handsets utilizing new air interfaces or technologies where HAC standards or testing protocols are not yet available. In addition to examining the effect on innovation, the Commission should seek comment on the impact of the new benchmarks on U.S. product offerings.

The Commission should also seek comment on the best ways to improve collaboration on consumer education including but not limited to: making information about the HAC ratings of wireless handsets and hearing aids more easily discoverable and accessible by consumers as well as how HAC information should be updated on Web sites in a timely manner that is usable by consumers. The Commission should also request comment on how the hearing aid industry and other relevant stakeholders should take measures to ensure that consumers have improved access to the HAC ratings of hearing aids.

13. In connection with the suggested questions regarding waivers, the Commission also seeks comment on how to best to apply the Section 710(b)(3) waiver process in the context of the Joint Consensus Proposal. Should the Commission establish a fixed time period within which the Commission must take action on waiver requests? If so, would 180 days be an appropriate amount of time, considering both the need to develop a full record and the importance of avoiding delay in the introduction of new technologies? If not 180 days, what amount of time would be appropriate? If the Commission establishes a time period for Commission action, are there situations in which the Commission should have the ability to extend the deadline?

3. Analysis of Statutory Factors

14. The Commission seeks comment on whether the Joint Consensus Proposal is consistent with and warranted under Section 710 of the Communications Act. Section 710(b)(2)(B) directs the Commission to use a four-part test to periodically reassess exemptions from the hearing aid compatibility requirements for wireless handsets. Specifically, the statute directs the Commission to revoke or limit an exemption if it finds that (1) Continuing the exemption without such revocation or limitation would have an adverse effect on individuals with hearing loss; (2) compliance with the hearing aid compatibility requirements would be technologically feasible for devices to which the exemption applies; (3) the cost of compliance would not increase costs to such an extent that the newly covered devices could not be successfully marketed; and (4) revoking or limiting the exemption is in the public interest. The Commission seeks comment on whether this analysis is applicable to the changes proposed in the Joint Consensus Proposal, whether such changes would meet this four-part test, and whether the proposal requires any modifications to satisfy the statutory standard.

15. Section 710 further directs that, in any rulemaking to implement hearing aid compatibility requirements, the Commission should (1) specifically consider the costs and benefits to all telephone users, including people with and without hearing loss, (2) ensure that hearing aid compatibility regulations encourage the use of currently available technology and do not discourage or impair the development of improved technology, and (3) use appropriate timetables and benchmarks to the extent necessary due to technical feasibility or to ensure marketability or availability of new technologies to users. The Commission therefore asks commenters to address these factors in their analysis of the proposal and to explain whether modifications are warranted.

4. Standards and Technologies for Meeting Compatibility

16. The Commission seeks comment on whether the compatibility requirement—revised pursuant to the Joint Consensus Proposal or in any other manner—should specifically require both a minimum M3 and minimum T3 rating, or whether manufacturers should be allowed to meet the requirement by incorporating other methods of achieving compatibility with hearing aids, such as Bluetooth®. The Commission is mindful that some innovative advances in accessibility features have resulted from outside-of-the-box solutions, and the Commission does not wish to discourage these types of pioneering advances. The Commission seeks comment on the extent to which such alternative approaches are able to meet the communications needs of people with hearing loss. Specifically, in addition to commenting on the effectiveness of such alternatives for aiding in comprehending telephone conversation, the Commission asks commenters to provide information about the cost of such devices to consumers, as well as the ease of procuring devices needed to use such alternatives. Given these criteria, what approaches should the Commission recognize as viable alternatives, how should such alternative approaches be incorporated into the hearing aid compatibility rules, what customer disclosures should be required for alternative approaches, and what standards should apply to the alternative approaches, particularly with respect to testing and rating alternative devices and technologies? How, if at all, would such alternative approaches impact the efficacy of the Joint Consensus Proposal?

17. What are the costs and benefits of allowing these alternative approaches? For example, Apple proposes that the Commission apply the ANSI standards as a “safe harbor” for hearing aid compatibility but to “reward innovators for finding other, better solutions that result in real accessibility even if they do not meet the ANSI standards.” Although Apple proposes this approach as an alternative method of meeting the existing benchmarks, the Commission seeks comment on whether to adopt it in conjunction with the Joint Consensus Proposal. The Commission also seeks comment on how to determine hearing aid compatibility outside of compliance with the applicable ANSI standard. The Commission invites commenters to consider alternatives of this kind when evaluating the Joint Consensus Proposal.

5. Exceptions

18. The current de minimis exception provides that small manufacturers and service providers that offer two or fewer digital wireless handset models operating over a particular air interface are exempt from the benchmark deployment requirements in connection with that air interface, while larger manufacturers and service providers with two or fewer handset models have a limited obligation. The provision further states that any manufacturer or service provider that offers three digital wireless handset models operating over a particular air interface must offer at least one such handset model that meets the M3 and T3 standards for that air interface. Although the Joint Consensus Proposal recommends retaining this exception for the new two and five year benchmarks (with an added provision for entities offering four or five handsets), it does not expressly address whether and how the exception will continue to apply under a subsequent 100 percent requirement.

19. The Commission seeks comment on whether to preserve the de minimis exception in whole or in part in the event the Commission adopts a 100 percent requirement. Should the Commission preserve the exception during the transitional periods prior to implementation of a 100 percent compatibility requirement, as proposed in the Joint Consensus Plan? Alternatively, should the Commission phase out the de minimis exception over the course of the transitional periods? Should the Commission preserve the exception even in the event of a 100 percent compatibility obligation? How would the de minimis exception operate under a 100-percent compatibility requirement? If a qualifying manufacturer were to offer a non-compliant handset, could any provider make it available to consumers, or would it only be available to providers that are also eligible for the exception? If such handsets were unavailable to providers that were not eligible for the exception, would preserving the exception effectively limit consumer choice in many cases? If so, are there distinct aspects or features of the exception that the Commission should preserve?

20. The Commission seeks comment on whether it should include any other exceptions in the event the Commission adopts a 100 percent compatibility requirement, and how such exceptions are consistent with and warranted under Section 710's requirements. The Commission seeks comment on whether there are particular air interfaces, such as GSM operating in the 1900 MHz band, which will face particular difficulties in meeting a 100 percent compatibility requirement and, if so, whether and how such difficulties should be specifically addressed or accommodated under a 100 percent compatibility requirement. Are there new technological solutions that should better enable GSM/1900 handsets to achieve hearing aid compatibility and, if so, what requirements should apply to GSM/1900 handsets given such solutions?

6. Legacy Models

21. In the event the Commission adopts a 100 percent compatibility requirement, the Commission seeks comment on the appropriate treatment of legacy models. Should non-hearing aid-compatible handsets that received equipment authorization prior to the end of any transition period be grandfathered to better ensure that manufacturers are able to recoup their investments in their legacy handsets? The Commission seeks comment on this option, on alternative approaches to grandfathering, and on whether, following some additional period after a transition to a 100 percent compatibility regime, the Commission should require hearing aid compatibility for all handset models offered (as opposed to just models released after transitioning to the 100 percent regime).

22. The Commission further seeks comment on how best to ensure that people with hearing loss are able to find hearing aid compatible phones that can meet their communication needs during the transition period to a 100 percent compatibility requirement. The Commission notes that Section 717(d) of the Communications Act, added by the CVAA, requires the Commission to maintain a clearinghouse of information about accessible products and services required under sections 255, 716, and 718 of the Act. The Commission launched its Accessibility Clearinghouse in October 2011. Among other things, this database allows consumers to search for wireless handsets with accessibility features that meet the needs of various disabilities, including hearing aid compatible handsets. Does this Accessibility Clearinghouse, or the Web sites upon which it relies, effectively provide the information needed by consumers to locate hearing aid compatible phones? In other words, does it enable a consumer to determine without difficulty whether any particular handset model is hearing aid compliant? If not, the Commission seeks comment on the format and type of information that the Commission should include in the Accessibility Clearinghouse in order to empower consumers to make educated decisions about their handset purchases. The Commission notes, for example, that currently, manufacturers are required to electronically file annual compliance reports with the Commission on FCC Form 655 in July of each year and service providers must electronically file this form with the Commission in January of each year. These reports include, among other information, the M and T ratings for each handset. Is there a way that such information can be used to automatically supplement the information now provided in the Accessibility Clearinghouse database? In addition, in the event the Commission adopts a 100 percent compatibility requirement, will it be necessary to continue providing information on hearing aid compatible phones in the Accessibility Clearinghouse? It is not the Commission's intention to create additional reporting burdens on manufacturers and service providers, therefore, the Commission seeks comment on approaches to ensuring that the improvements contemplated above do not impose such burdens.

23. The Commission also seeks comment on whether service providers should be able to rely on information in the Accessibility Clearinghouse and on Form 655 to the extent that it reflects compliance information submitted by manufacturers. Are there any reasons service providers should not be able to rely on the Accessibility Clearinghouse or Form 655? For example, how should the Commission treat a service provider if it offers a handset that a manufacturer has included in the Accessibility Clearinghouse and indicated to be compliant in the manufacturer's annual FCC Form 655, even if it is later determined that the handset does not in fact meet the hearing aid compatibility requirements? Should such information create a presumption that the service provider is not in breach of the Commission's hearing aid compatibility rules?

7. Burden Reduction

24. In the event the Commission ultimately transitions to a 100-percent compatibility regime, the Commission proposes to ease or eliminate the reporting, disclosure, labeling, and other requirements imposed under the current rules. The Commission seeks comment on the extent to which these requirements are unnecessary or unwarranted in the event the Commission moves to a 100 percent regime, and on the costs and benefits of easing such requirements as they relate to consumers, manufacturers, and service providers.

25. Currently, manufacturers are required to electronically file annual compliance reports with the Commission on FCC Form 655 in July of each year and service providers must electronically file this form with the Commission in January of each year. The Commission seeks comment on whether to end the reporting requirements for manufacturers and service providers in the event the Commission moves to a 100 percent regime or at some point thereafter. The Commission notes that numerous parties, especially rural and small service providers, have asserted that preparing these annual reports is burdensome. While these reports help the Commission monitor compliance with the hearing aid compatibility benchmarks, will such monitoring still be necessary, and will the benefits of these reports still outweigh the burdens, in the event the Commission moves to a 100 percent compatibility regime? Alternatively, should the Commission eliminate the reporting requirement only for service providers, on the grounds that manufacturers' reports will be sufficient under a 100 percent regime to ensure all models available to consumers are compliant? Should the Commission maintain the reporting requirement for other groups for a certain period of time while non-compliant legacy models remain in inventory? Should the Commission maintain reporting requirements for manufacturers and service providers who offer handsets that are exempt from hearing aid compatibility requirements or can be used for services that are exempt from these rules? The Commission notes that the Joint Consensus Plan would establish two new benchmarks, at year two and year five. Should the Commission modify the content or applicability of the reporting requirements that apply during the period following either the two or five year benchmark but prior to the implementation of a 100 percent compatibility requirement?

26. The existing hearing aid compatibility rules also require manufacturers and service providers to label their hearing aid-compatible handsets with the appropriate M and T ratings and provide information on the rating system, and to meet certain disclosure requirements for hearing aid-compatible handsets that are not compatible over all their operations. The rules also require manufacturers and service providers to provide information on their Web sites, such as a list of all hearing aid-compatible models currently offered, the associated rating information for those handsets, and an explanation of the rating system. The Commission seeks comment on whether, in the event the Commission moves to a 100 percent compatibility regime, the current labeling and disclosure requirements should be eliminated, simplified, or amended. Alternatively, should the Commission continue to require disclosure of rating information in packaging and on Web sites for hearing aid-compatible handset models so that consumers can distinguish between M3 and M4 ratings, between T3 and T4 ratings, and between hearing aid-compatible handsets and grandfathered non-compatible models?

27. The Commission also seeks comment on whether to eliminate the product refresh rule applicable to manufacturers and the differing levels of functionality rule applicable to service providers if the Commission moves to a 100 percent compatibility regime or adopts other modifications to the benchmarks. The product refresh rule requires manufacturers that offer new handset models in a year to ensure that a certain number of the new models are hearing aid-compatible. The differing levels of functionality rule requires service providers to offer a range of hearing aid-compatible models with differing levels of functionality in terms of capabilities, features, and price. In the context of benchmarks that do not require 100 percent of handsets to be hearing aid-compatible, these additional requirements help to ensure that people with hearing loss have access to handsets with the latest features and functions and at different price points. The Commission tentatively concludes that a refresh rule would serve no purpose after a 100 percent requirement takes effect, given that it merely imposes a fractional obligation on new models, which would be entirely subsumed by the new requirement. The Commission seeks comment on this conclusion. The Commission further seeks comment on whether a 100 percent requirement on manufacturers would also be sufficient to ensure that service providers offer a range of hearing aid-compatible models with differing levels of functionality. Will maintaining the differing levels of functionality requirement help to ensure that low-income Americans with hearing loss have access to affordable hearing aid-compatible handsets?

28. Finally, to the extent the Commission moves to a 100 percent compatibility regime, the Commission seeks comment on whether the Commission should eliminate or otherwise ease the deployment benchmarks applicable to the overall handset portfolios of manufacturers and service providers. Will benchmarks remain necessary, even after a transition to a 100 percent requirement, to ensure that manufacturers and service providers do not weight their portfolios toward non-compliant grandfathered handsets? If so, for how long? Would an additional two-year period be an appropriate time-frame to sunset these service provider requirements? Alternatively, should the Commission eliminate deployment benchmarks for Tier III service providers immediately upon moving to a 100 percent regime, but preserve it for Tier I and II service providers for an additional two or three years? What are the costs and benefits of eliminating the benchmarks on service providers if all or nearly all new models offered by manufacturers will be compliant?

8. Alternative to the Joint Consensus Proposal

29. The Commission seeks comment on whether and how to revise the current benchmark system in the event that, based on the record the Commission receives, the Commission determines not to adopt the Joint Consensus Proposal. Should the Commission pursue another approach to transition to a 100 percent compatibility requirement, consistent with the factors identified in Section 710? What would be an appropriate transition period? Should the Commission consider exceptions, waivers, burden reductions, legacy handset rules, and alternative approaches to measuring compliance, as discussed above in connection with the Joint Consensus Proposal?

IV. Procedural Matters

A. Initial Regulatory Flexibility Analysis

30. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities of the policies and rules proposed in this Notice of Proposed Rulemaking (NPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM provided above. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).

1. Need for, and Objectives of, the Proposed Rules

31. To ensure that a wide selection of digital wireless handset models is available to consumers with hearing loss, the Commission's rules require both manufacturers and service providers to meet defined benchmarks for offering hearing aid-compatible wireless phones. Specifically, manufacturers and service providers are required to offer minimum numbers or percentages of handset models that meet specified technical standards for compatibility with hearing aids operating in both acoustic coupling and inductive coupling modes. These benchmarks apply separately to each air interface for which the manufacturer or service provider offers handsets.

32. The wireless hearing aid compatibility rules have incorporated this fractional benchmark approach since the provision was first established in 2003, but the Commission has on occasion revised the specific benchmarks that manufacturers and service providers are required to meet. The current benchmarks were established in 2008 when the Commission adopted the Joint Consensus Plan submitted by an Alliance for Telecommunications Industry Solutions (ATIS) working group that included Tier I carriers, handset manufacturers, and several organizations representing the interests of people with hearing loss. That plan provided for benchmarks to increase over time, up to a final set of benchmarks that became effective in 2010 and remain in place today.

33. The current deployment benchmarks require that, subject to a de minimis exception described below, a handset manufacturer must meet, for each air interface over which its models operate, (1) at least an M3 rating for RF interference reduction for at least one-third of its models using that air interface (rounded down), with a minimum of two models, and (2) a T3 rating for inductive coupling for at least one-third of its models using that interface (rounded down), with a minimum of two models. Similarly, for each of the air interfaces their handsets use, service providers also must meet an M3 rating for at least 50 percent of their models or ten models, and must meet a T3 rating for at least one-third of their models or ten models. In general, under the de minimis exception, manufacturers and service providers that offer two or fewer wireless handset models for any given covered air interface are exempt from these benchmarks for those models.

34. In the NPRM, the Commission seeks comment on a historic agreement (hereinafter, the “Joint Consensus Proposal”) among key consumer and industry stakeholders that would revise the current benchmarks. In brief, the Joint Consensus Proposal provides that within two years of the effective date of new rules adopted, 66 percent of wireless handsets offered to consumers should be compliant with the Commission's acoustic coupling radio frequency interference (M rating) and inductive coupling (T rating) requirements. The proposal provides that within five years of the effective date of new rules adopted, 85 percent of wireless handsets offered to consumers should be compliant with the Commission's M and T ratings. The proposal provides that this benchmark should apply directly to manufacturers and carriers that offer six or more digital wireless handset models in an air interface, with additional compliance periods for Tier I and Non-Tier I carriers of six months and eighteen months, respectively, to account for limits on handset availability and inventory turn-over rates. In addition to these two-year and five-year benchmarks, the proposal provides that the Commission should commit to pursue that 100 percent of wireless handsets offered to consumers should be compliant within eight years. The Joint Consensus Proposal conditions the transition to 100 percent, however, on a Commission determination within seven years of the rules' effective date that reaching the 100 percent goal is achievable, based in part on review of a report by a task force to be established for this purpose.

35. While the Commission finds that the existing fractional benchmarks have been successful in making a broad variety of hearing aid-compatible handsets available to consumers with hearing loss, the Commission recognizes its statutory obligation to periodically reassess any exemptions from the hearing aid compatibility requirements. The Commission proposes to adopt the Joint Consensus Proposal, finding that it provides an effective approach to replacing the fractional system with one that will give consumers with hearing loss the same selection of wireless handsets that is available to the general public.

2. Legal Basis

36. The potential actions about which comment is sought in this NPRM would be authorized pursuant to the authority contained in sections 4(i), 303(r), and 710 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), and 610.

3. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Would Apply

37. 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 the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 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 SBA. To assist the Commission in analyzing the total number of potentially affected small entities, the Commission requests commenters to estimate the number of small entities that may be affected by any rule changes that might result from this NPRM.

38. As discussed above, in the NPRM, the Commission seeks comment on a revision to the deployment benchmarks. While these changes would affect the specific obligations of covered entities under the rules, it would not alter the scope of entities subject to the rules, and accordingly, the Commission finds that the analysis of the categories and number of small entities that may be affected by the proposed rules is the same as for the Final Regulatory Flexibility Analysis the Commission provided in connection with the revision to those rules adopted in the Fourth Report and Order. Accordingly, the Commission incorporates the analysis in the Final Regulatory Flexibility Analysis accompanying the Fourth Report and Order, as the description and estimate of the number of small entities to which the proposed rules would apply.

4. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities

39. The Commission is not proposing to impose any additional reporting or record keeping requirements. Rather, as discussed in the next section, the Commission is seeking comment on whether, if it adopts a 100 percent requirement, it can reduce regulatory burden on all wireless handset manufacturers and wireless service providers regardless of size by eliminating and streamlining the related hearing aid compatibility requirements. Presently, these requirements include annual reporting, disclosure, labeling, and other regulatory requirements. As part of its decision to eliminate or reduce regulatory burden, the Commission will consider whether it can reduce regulatory burden for small service providers and manufactures, if it cannot be done for all service providers and manufacturers.

5. Steps Proposed To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

40. The RFA requires an agency to describe any significant, specifically small business alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) exemption from coverage of the rule, or any part thereof, for small entities.”

41. In the NPRM, the Commission proposes to adopt the terms of the Joint Consensus Proposal, including provisions that will help to minimize impact on small entities. The Joint Consensus Proposal recommends, and the Commission proposes, that while increasing the benchmarks at year two and year five, the Commission keeps in place the existing de minimis exception for manufacturers and service providers offering three handsets or less. The current de minimis exception provides that small manufacturers and service providers that offer two or fewer digital wireless handsets operating over a particular air interface are exempt from the benchmark deployment requirements in connection with that air interface, while larger manufacturers with two or fewer handsets have a limited obligation. The provision further states that any manufacturer or service provider that offers three digital wireless handset models operating over a particular air interface must offer at least one such handset model with at least an M3 and T3 rating for that air interface. In addition to retaining this exception to the benchmarks, the Commission proposes to adopt the Joint Consensus Proposal's recommendation that manufacturers and service providers offering either four or five handsets in an air interface be required to ensure that at least two of those handset models comply with the Commission's M and T rating requirements, rather than be required to meet the new 66 percent and 85 percent benchmarks. Finally, the Joint Consensus Proposal also provides additional time to small carriers to meet the benchmarks. Specifically, it provides that, while manufacturers must meet the new 66 percent and 85 percent benchmarks after two and five years, respectively, following the effective date of the rules, all non-nationwide carriers will have eighteen additional months to reach each benchmark (i.e., eighteen months after the two and five year deadlines applicable to manufacturers).

42. With respect to adoption of a 100 percent requirement, the Joint Consensus Proposal conditions the transition to 100 percent hearing aid compatibility on a Commission determination, after the receipt and review of a report from a newly established task force, that reaching the 100 percent goal is “achievable.” The NPRM seeks comment on how the Commission should determine achievability and what criteria should be utilized in making this determination. The NPRM also seeks comment on whether the current de minimis exception or the expanded de minimis exception, as proposed by the Joint Consensus Proposal, should be preserved in whole or in part if the Commission determines that adopting a 100 percent benchmark is achievable. In making the determination of achievable and whether to keep or expand the de minimis exception, the Commission will be considering, in part, whether small handset manufacturers and service providers have the resources to meet a 100 percent obligation or whether some accommodation, such as an exception, needs to be made for these entities.

43. In addition to the de minimis exception, the Commission seeks comment on other possible exceptions to the 100 percent requirement. These exceptions could apply to all manufacturers of wireless handsets or to some subset of wireless handset manufacturers, such as small entities generally (i.e., including those that do not fall within the de minimis exception). Further, the Commission seeks comment on which compliance process, such as waivers, should be modified to accommodate innovation and carriers', especially rural and regional carriers', handset inventories and turn-over rates, within a compliance regime with the enhanced benchmarks. These modifications would benefit all wireless handset manufacturers, including small entities, with their compliance obligations.

44. In the event the Commission adopts a 100 percent requirement, the NPRM seeks comment on grandfathering legacy handsets that are not hearing aid-compatible. The NPRM ask whether the Commission should allow manufacturers, including small manufacturers, of wireless handsets the ability to recoup their investment in non-hearing aid-compatible legacy handsets. Under this proposal, the Commission would allow wireless handset manufacturers to continue to offer handset models that have not been certified as hearing aid-compatible after the transition period to 100 percent ends if the manufacturer received equipment authorization for the handset prior to the end of that period. This proposal should help to minimize the economic impact of a 100 percent requirement on small entities.

45. The NPRM also seeks comment on whether transitioning to a 100 percent requirement would justify easing or eliminating several requirements associated with the hearing aid compatibility rules, which would further reduce the net economic impact of the adopted changes on these manufacturers and providers, including small entities. First, under the current rules, manufacturers are required to electronically file annual compliance reports with the Commission on FCC Form 655 in July of each year and service providers must electronically file this form with the Commission in January of each year. While these reports help the Commission to monitor compliance with the hearing aid compatibility benchmarks, numerous parties, especially rural and small entities, have asserted that having to file these annual reports is burdensome. The Commission seeks comment on whether to end or modify the reporting requirements for manufacturers and service providers at some point as the benchmarks increase. These changes to the reporting requirements would benefit all service providers and manufacturers, including small providers and manufacturers.

46. The existing hearing aid compatibility rules also require that manufacturers and service providers meet certain labeling and disclosure requirements for hearing aid-compatible handsets, and provide information on their Web sites, such as making available on their publicly-accessible Web sites a list of all hearing aid-compatible models currently offered, the associated rating information for those handsets, and an explanation of the rating system. The Commission seeks comment on whether, upon implementation of the 100 percent requirement, the current labeling and disclosure requirements should be eliminated or amended.

47. The Commission also seeks comment on whether, if it adopts a 100 percent requirement or other modifications to the benchmarks, it should eliminate the product refresh rule applicable to manufacturers, which provides that each manufacturer that offers any new model for a particular air interface during the calendar year must “refresh” its offering of hearing aid-compatible handset models by offering a mix of new and existing models that comply with the hearing aid compatibility technical standards. It further seeks comment on eliminating the differing levels of functionality rule applicable to service providers. Finally, if the Commission adopts a 100 percent requirement, the NPRM seeks comment on whether to eliminate or otherwise ease the deployment benchmarks applicable to the overall handset portfolios of manufacturers and service providers. Elimination of these rules would benefit small entities as well as larger manufacturers and service providers.

48. The Commission seeks comment generally on the effect, economic impact, or burden of the rule changes considered in the NPRM on small entities. It further seeks comment on any alternatives that would reduce the economic impact on small entities. It also seeks comment on whether there are any alternatives the Commission could implement that could achieve the Commission's goals while at the same time minimizing or further reducing the burdens on small entities, and on what effect such alternative rules would have on those entities. The Commission invites comment on ways in which it can achieve its goals while minimizing the burden on small wireless handset manufacturers and service providers. For the duration of this docketed proceeding, the Commission will continue to examine alternatives with the objectives of eliminating unnecessary regulations and minimizing any significant economic impact on small entities.

6. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules

49. None.

B. Initial Paperwork Reduction Act Analysis

50. The Notice of Proposed Rulemaking contains proposed modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. 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 seeks specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

C. Other Procedural Matters

1. Ex Parte Rules—Permit-But-Disclose

51. The proceeding that the Notice of Proposed Rulemaking initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

2. Comment Filing Procedures

52. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. All filings related to this Notice of Proposed Rulemaking should refer to WT Docket No. 15-285. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (May 1, 1998).

• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/ .
• Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.

People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

V. Ordering Clauses

53. It is ordered, pursuant to 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 Notice of Proposed Rulemaking is hereby adopted.

54. It is further ordered that pursuant to applicable procedures set forth in sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on this Notice of Proposed Rulemaking on or before January 14, 2016, and reply comments on or before January 29, 2016.

55. It is further ordered that the Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 20

• Communications common carriers
• Communications equipment
• Incorporation by reference
• Radio

Proposed Rules

For the reason discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 20 as follows:

PART 20—COMMERCIAL MOBILE SERVICES

1. The authority citation for part 20 continues to read as follows:

Authority: 47 U.S.C. 151, 152(a) 154(i), 157, 160, 201, 214, 222, 251(e), 301, 302, 303, 303(b), 303(r), 307, 307(a), 309, 309(j)(3), 316, 316(a), 332, 610, 615, 615a, 615b, 615c, unless otherwise noted.

2. Section 20.19 is amended by revising paragraph (c) introductory text, adding paragraph (c)(1)(i)(C), revising paragraph (c)(1)(ii), adding paragraphs (c)(2)(iii) and (c)(3)(iii), revising paragraph (c)(4)(ii) and paragraph (d) introductory text, adding paragraphs (d)(1)(iii), (d)(2)(iii), and (d)(3)(iii), revising paragraph (d)(4)(ii), adding paragraphs (e)(3) and (4), revising paragraph (i)(1), and adding paragraph (m) to read as follows: